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01.17.19

US Patent Lawyers Will Need to Change Profession or End up Becoming Abundantly Redundant, Unemployed

Posted in America, Patents at 6:04 am by Dr. Roy Schestowitz

Last year: Number of US Patent Lawsuits Was More Than 50% Higher Half a Decade Ago

Patent Lawyers' Tears

Summary: In the age of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and 35 U.S.C. § 101 it’s too risky to sue with dodgy patents; moreover, the Federal Circuit‘s growing adoption of Alice means that no recent cases have given hope to patent maximalists and litigation frequency has fallen again (at double-digit rates)

FOR THOSE who still wonder why we don’t write much about the USPTO anymore (we still cover EPO affairs), it’s to do with the decline of patent litigation in the US. It seems to still accelerate though anti-PTAB front groups continue to cherry-pick numbers and pretend that the Office can influence courts; it’s the other way around [1, 2].

“Over the past few years many such shops have shut down or have been taken over/merged. The father of patent trolling died along with his ‘business’ and the world’s biggest troll, Intellectual Ventures, is shedding off ‘assets’.”We’ve taken note of the demise of the litigation capital in Texas and currently the European Patent Office is failing to create an alternative to it in Europe (the UPC is failing). After litigation had already fallen sharply (it used to be a half higher half a decade ago, i.e. around the time of Alice) we learned that as per the “Docket Navigator database on January 14, some 3,600 cases were filed in 2018 – down 11.5%,” as Managing IP put it. It’s pretty clear that the patent litigation ‘industry’ has collapsed in the US. It’s good for people who actually make/innovate stuff; not so good for litigators and trolls. Over the past few years many such shops have shut down or have been taken over/merged. The father of patent trolling died along with his ‘business’ and the world’s biggest troll, Intellectual Ventures, is shedding off ‘assets’. If we don’t cover US patents as much as we did last year, this is why. So far this week Watchtroll has already attacked both SCOTUS and PTAB. It also liaised with IBM for some more software patents propaganda, reaffirming our fears for Red Hat's fate.

01.13.19

Only the Higher Courts — Not Trump’s ‘Poster Child’ — Can Bring Back Software Patents

Posted in America, Patents at 7:07 pm by Dr. Roy Schestowitz

Iancu’s firm had worked for Trump before he got this job

Trump and Iancu

Summary: Software patents are not making a “comeback” as some like to claim; in fact, the latest court cases and notably their outcomes suggest that nothing has changed

OVER THE course of the day today I saw about a dozen articles, all written by patent law firms, regarding the guidance on software patents (or Section 101) at the U.S. Patent and Trademark Office (USPTO). Some were as misleading as this one, but some were more moderate or conservative. Some admit that as long as the courts reject such patents, not much will change.

“Unified Patents has advertised new jobs for attorneys looking to squash bad patents through inter partes reviews (IPRs), so there’s hope for people looking for a career change — basically challenging patents rather than saturating the market with them.”Earlier this weekend Patent Docs advertised this so-called ‘webiner’ with “guidance on how to defend software patents from attacks under those statutory sections…”

No, patents do not come under “attacks”; the patents themselves and the lawsuits are arguably ‘theft’ (monopoly) and attacks, respectively, especially when the patents are known to be questionable/invalid all along. In the interests of time management we’ve promised not to dwell on USPTO affairs this year but instead focus on the European Patent Office (EPO) and non-patent matters. Earlier today I saw several dozens of examples of newly-granted US patents on software — basically no exception to what we saw in past months or years. Watchtroll keeps moaning and sobbing about courts while the site demonises PTAB. This too is the usual. Iancu cannot legally bypass the courts (he might try), so we’ll be paying more attention to patent cases and decisions (courts’ opinions) than to the nonsense that comes out of Iancu’s mouth. Based on the past two weeks (since the year started), there’s no case defying Alice at the Federal Circuit or the Patent Trial and Appeal Board (PTAB). Unified Patents has advertised new jobs for attorneys looking to squash bad patents through inter partes reviews (IPRs), so there’s hope for people looking for a career change — basically challenging patents rather than saturating the market with them.

Unless or until courts change course, Techrights won’t be covering US patent affairs as much as it did last year. This is planned and it’s strategic (a matter of priorities).

01.12.19

No, Software Patents Are Not Poised to Make a Comeback Under New US Patent Office Rules

Posted in America, Deception, Patents at 6:41 pm by Dr. Roy Schestowitz

Condé Nast has lost Joe Mullin (shown below) to the EFF and it shows

Joe Mullin

Summary: Poor understanding of the difference between patent courts and patent offices is to blame for widely-spread misinformation from Ars Technica (part of Condé Nast)

“Software patents poised to make a comeback under new patent office rules,” said this headline from corporate media stationed near Wall Street (its parent company anyway). When I first saw that I had to giggle a little; I never saw this author’s name before, so I assumed little experience in this particular area. I should probably know the names, having dedicated about a decade of my life studying and writing about software patents in the U.S. Patent and Trademark Office (USPTO). I wrote about 5,000 articles about it (more than I wrote about the EPO — somewhere around 3,000 articles). This site’s patent expert actually left and joined the EFF about a year ago, leaving perhaps somewhat of a skills vacuum and lack of understanding.

“By broadening the scope of granted patents to include some abstract patents all he’s going to achieve is reduced certainty (presumption of validity) of US patents.”“Software patents poised to make a comeback under new patent office rules,” says the headline. Sites like Slashdot and BoingBoing have since repeated it verbatim. Even lesser-known sites keep repeating this dramatic statement. Misreporting and misleading headline is what it is; see this explanation from last Sunday. “New rule narrows landmark 2014 Supreme Court decision limiting software patents,” says the summary, but actually only a court can impact this decision. Courts go by the rules of higher courts, not some Trump-connected lackey like Iancu, who is serving patent maximalists like himself. By broadening the scope of granted patents to include some abstract patents all he’s going to achieve is reduced certainty (presumption of validity) of US patents. This self-harming move is hardly being celebrated even by trolls; they know it’s the courts that matter. Courts have changed nothing and Watchtroll has complained about it a lot over the past week.

01.08.19

EPO Corruption is Helping Patent Maximalists in the United States

Posted in America, Europe, Patents at 5:44 am by Dr. Roy Schestowitz

They want software patents to return because they make money from litigation

A lifeline or orange lifesaver

Summary: The law firms that promote abstract patents in the United States (in the face of growing opposition from courts) adopt the EPO as a sort of ‘poster child’ because quality of European Patents keeps decreasing and lawlessness is increasing

THE European Patent Office (EPO) and the U.S. Patent and Trademark Office (USPTO) have moved in opposite directions. One permits more abstract patents, whereas the other must disallow these (mainly because of courts’ decisions).

“People are of course realising that the EPO lost its way and the biggest stakeholders complain about a decline in quality; this has not changed because nothing is being done about the problem. Nothing.”There were a couple of EPO tweets on Monday about “AI” and similar nonsense that António Campinos uses to usher in European software patents.

People are of course realising that the EPO lost its way and the biggest stakeholders complain about a decline in quality; this has not changed because nothing is being done about the problem. Nothing.

Kluwer Patent Blog, where many concerns about patent quality have been raised, has just said : “What were the most popular articles of the Kluwer Patent Blog in 2018? A look at the list shows that – even more strongly than in previous years – one topic drew more readers than anything else: the functioning of European Patent Office.”

“The EPO doesn’t measure quality, it’s just a monopoly-granting machine and it’s nothing to be proud of as that privilege can be revoked in the future (if many monopolies are being granted in error as means of faking ‘production’).”IP Kat refuses to touch the subject (anymore); Team UPC, which is now in control of that blog, views EPO scandals as detrimental to its interests.

Jones Day’s Alastair J. McCulloch, Christian Paul, Indradeep Bhattacharya and Roland J. Graf have just published “Second Medical Use Patents in Europe: Are UK and Germany Swapping Approaches?”

This was mentioned a few weeks ago in some other blogs, including IP Kat. There are all sorts of ‘artistic’ ways to pursue abstract patents, e.g. making them seem physical ("on a car") or medical (as if they “save lives”) and Watchtroll (US) had just exploited Roberta Romano-Götsch (EPO) to that end. She spoke to Watchtroll's Gene Quinn some months ago and prior to that she had worked exceptionally hard for Team Battistelli (thus she has negative reputation among EPO staff). She said they’re “seeing an increase in applications from SMEs as well.” How good are these applications? The EPO doesn’t measure quality, it’s just a monopoly-granting machine and it’s nothing to be proud of as that privilege can be revoked in the future (if many monopolies are being granted in error as means of faking ‘production’).

“Software patents are an impediment to software development rather than a prerequisite; nobody who actually develops software wants such patents.”The worrying thing to us (because we’re reducing focus on the US patent system) is that American patent maximalists are nowadays embracing this unhinged EPO (which shamefully breaks its own rules) to promote software patente even outside Europe (also against the rules).

Days ago we wrote about the latest 35 U.S.C. § 101 guidance with new spin like “computer implemented inventions.” It was typically the EPO using this ridiculous term (along with “technical effect”), but now it spreads across the Atlantic. Yesterday, in “Daily Business Review”, a rather bizarre suggestion was published, conflating/mixing one patent office with another:

Using EPO to Chase ‘Alice’ Out of the Rabbit Hole

The European Patent Office (EPO) issued guidelines for Nov. 1, 2018, that in many ways summarizes the direction and guidance of U.S. jurisprudence and USPTO policy for patent eligibility for computer implemented inventions. Much of the recent U.S. guidance evolves from the 2014 U.S. Supreme Court decision Alice v. CLS Bank International (573 U.S. 208) concerning a computer implemented electronic escrow service for facilitating financial transactions where the patent claims were found invalid as being drawn to an abstract idea. Patent ineligibility was found using a two-step process. The first step determines whether a patent claim is an abstract idea such as an algorithm or a method of computation. If the patent claim includes an abstract idea such as an algorithm, then the patent eligibility process must go to the second step and determine whether the patent claim adds “significantly more” to the idea that embodies an inventive concept. Although “significantly more” really does not provide much concrete guidance, the court did find that a mere instruction to implement an abstract idea on a computer or the mere recitation of a generic computer cannot transform a patent-ineligible abstract idea into a patent-eligible invention.

Since Alice, although a significant majority of cases reviewed by the Federal Circuit have found computer implemented inventions patent ineligible, the pendulum has started swinging slightly in the direction of eligibility by clarifying what they meant by “something more” with a few cases where patent eligibility was found. See Thales Visionix v. United States, Amdocs (Israel) v. Openet Telecom, McRO v. Bandai Namco Games America, Bascom Gobal Internet Services v. AT&T Mobility, Enfish v. Microsoft, DDR Holdings v. Hotels.com or Research Corporation Technologies v. Microsoft.

Software patents are an impediment to software development rather than a prerequisite; nobody who actually develops software wants such patents.

IAM, which is based in Europe and constantly promotes software patents for patent trolls that pay its bills, has said: “Top five sectors for quantity of patent sales deals in the US, according to the latest data: (1) software; (2) electronics; (3) industrials; (4) medical; (5) semiconductors. Does demand for software patents indicate Alice trepidations lessening?”

“…I’d say it’s more about there being a lot of (often bad) software patents for sale out there, rather than anything to do with [Section] 101.”
      –Joshua Landau
Joshua Landau from the CCIA has just said (in response to the above): “Software was the top sector in 2017 and 2016 as well. So I’d say it’s more about there being a lot of (often bad) software patents for sale out there, rather than anything to do with [Section] 101.”

The spin from IAM is expected; they’re bound to ignore evidence about the harms of software patents as long as the sponsorship money demands so; for similar reasons they kept lying about UPC for a number of years, only to admit the lie/error about a week ago.

01.06.19

As Expected, Director Iancu Tries to Water Down the Examiners’ Guidance in Revised Patent Subject Matter Eligibility Document

Posted in America, Law, Patents at 2:59 am by Dr. Roy Schestowitz

…And patent maximalists are delirious, never mind if this merely widens the gap between caselaw (courts) and examination practice

Blind Leading the Blind
Blind Leading the Blind

Summary: In defiance of courts’ rejection of software patents, the Trump-appointed Director (whose firm had worked for Trump before the appointment) metaphorically sticks up his middle finger and ignores judges; the main casualty, however, will be legal certainty and the perception of patent justice

THIS year we are reducing our volume/frequency of coverage regarding the United States Patent and Trademark Office (USPTO). As we explained before, software patents are more or less dying in the US not because of the Office but because of the courts. The signs are everywhere and not even patent maximalists are denying it (not anymore; they did in past years). Nutter McClennen & Fish LLP’s Todd Gerety, for example, has just published this article that says: “Over the years, patents have issued on numerous games, including iconic favorites such as Monopoly® (1935), Battleship® (1935), Rubik’s Cube® (1983), Rock’em Sock’em Robots® (1966), Twister® (1969), and Simon® (1979). Although there is no per se rule under current U.S. patent law against the patenting of games, it may be more challenging today to obtain patents on certain games due to the patent eligibility requirements of 35 U.S.C. § 101.

“For example, the Federal Circuit recently affirmed a final decision of the Patent Trial and Appeal Board (“Board”) holding a claimed method of playing a dice game using dice having non-conventional markings to be patent ineligible under 35 U.S.C. § 101. See In Re: Marco Guldenaar Holding B.V. (Fed. Cir. 2018). Specifically, the court agreed with the Board that the claimed method recites the abstract idea of “rules for playing a game” and lacked an inventive concept sufficient to transform the claim into patent eligible subject matter.”

Obviously, as anyone can tell, patents on computer games are just software patents that should never have been granted in the first place. Games are a kind of software.

“So the Trump “swamp” is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”.”The Office, however, not to be mistaken for actual courts, doesn’t seem to care. The number of new patents declined last year (but it’s still far too high) and judging by Patently-O‘s assessment of the government shutdown, we might expect that number to decline further this year. “Once funds run out, the PTO is looking for ways to keep the doors open enough to continue to accept new application filings — while shutting down examination and PTAB activities,” Dennis Crouch wrote. “It is likely that a special PTO funding bill would receive bipartisan support — keeping the patent office rolling while other government services are shut-down.”

But no such bill exists yet. In another new post Crouch alluded to the new guidelines or a set of rules that does not impact courts, only examiners. Watchtroll wrote about it too, as did various patent maximalists in Twitter. “The USPTO has finally released the Revised Patent Subject Matter Eligibility Guidance (Section 101 Guidance),” one wrote. “USPTO 2019 Revised Patent Subject Matter Eligibility Guidance” makes two primary changes to how patent examiners apply the first step of the U.S. Supreme Court’s Alice/Mayo test, which determines whether a claim is “directed to” a judicial exception,” said another.

So the Trump "swamp" is trying to defy court rulings and bring back software patents rebranded as “computer-implemented inventions”. So what? The courts won’t care; they’ll keep rejecting such patents, only to reduce confidence in US patents (lowering legal certainty). So what is being achieve here? The United States Patent and Trademark Office has just issued a fake/dubious patent again. Why does it issue patents on abstract ideas? We still see plenty of new examples every day, but we won’t mention them all because we want to reduce focus on this subject (so as to save time).

Michael Loney, another patent maximalist, wrote about what he called “2019 Revised Patent Subject Matter Eligibility Guidance” as follows:

The guidance makes two primary changes to how patent examiners apply the Section 101 test, while the USPTO also announced guidance for the applying Section 112 to computer-implemented inventions

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Loney soon proceeded to promoting software patents agenda in a site of patent extremists and predators:

New USPTO guidance makes two primary changes to how patent examiners apply the Section 101 test, while guidance for applying Section 112 to computer-implemented inventions was also announced

The USPTO has announced revised guidance for subject matter eligibility under Section 101. The Office also announced guidance on the application of Section 112 to computer-implemented inventions.

Patent Docs has not yet commented on this; it did, however, post 5 adverts last night, including this one which includes: “What steps should patent counsel take to minimize the likelihood of § 101 rejections?”

At the Office or the courts? The matter of fact is, one can still get software patents from the Office (maybe more easily now than before, thanks to the biases of Iancu), but courts are tougher than ever on such patents. In fact, they now deal with some of the ‘better’ software patents (because litigation rates have collapsed), yet the success/failure ratio remains steady.

Keep on promoting software patents, Mr. Iancu, at the expense of the credibility of the Office Donald Trump put you in charge of.

01.03.19

Unified Patents Targets Patents of Patent Trolls, Including Some That Are Connected to Microsoft

Posted in America, Microsoft, Patents at 7:56 pm by Dr. Roy Schestowitz

Green

Summary: Hiding behind a thick layer of proxies are a large bunch/thickets of patent trolls, some of which are armed and financed by Microsoft, the company that claims to have reached “truce” on the patent front

Putting aside for a moment all the European matters (such as EPO President António Campinos promoting software patents in Europe), we’d like to highlight this new article titled “Coordinating Patent Strategies Across PTAB And EPO” by Drew Schulte. Outside the paywall it alludes to Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) — akin in a sense to what the Boards of Appeal are supposed to do:

Of all the changes introduced by the America Invents Act, arguably the most impactful, from a procedural standpoint, has been the introduction of new post-grant proceedings. Inter partes reviews, post-grant reviews…

Using these processes Unified Patents (not the Unitary/Unified Patent Court we’ve just mentioned) and others have been axing a lot of dubious patents that are sparingly “asserted against” (fancy term for sued with) a bunch of companies, almost always by patent trolls. The Federal Circuit rarely opposes such motions and months ago efforts to deny Unified Patents access to IPRs truly failed miserably.

In 2019 we intend to focus less on pertinent legal cases in the US, but this one from last week (published today) stood out because it reveals a Microsoft-connected patent troll, Dominion Harbor, hiding behind lots more proxies (we’ve named some before. “On December 28,” Robert Jain wrote, “Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,035,479 owned by well-known NPE Dominion Harbor subsidiary Clean Energy Management. The ‘479 patent, directed to a mesh network door lock, has been asserted against over 15 companies including Crestron, Cisco Systems, and Lowe’s.”

So Dominion Harbor is quite a litigation pipeline, but it doesn’t sue directly. Like the Microsoft troll that armed it (Intellectual Ventures), it’s working through an extensive network of shells.

Just to be clear, Unified Patents deals with a lot more than just Microsoft-connected trolls. To give some numbers, in their own words: “In the final month of 2018, Unified filed an unprecedented 22 new inter partes review challenges — each challenging a different NPE-controlled patent — setting a new record for the most petitions filed by a company in a single month since the PTAB’s inception.”

“Patent litigation in 2018 decreased by 5% overall compared to 2017 due to a drop in the number of new filings at both the district court and Patent Trial and Appeal Board (PTAB),” Robert Jain wrote. Here’s more:

The number of new patent disputes at the district courts and PTAB decreased by 5% overall.

NPEs account for approximately 55% of all new patent disputes in 2018.

So the majority are trolls. Earlier today Jain named Bradley Liddle as another patent troll with questionable patents that PTAB will likely squash. This one too is a proxy, as has been made clear: “On December 29, Unified filed a petition for inter partes review (IPR) against U.S. Patent 7,454,430 owned by Recursive Web Technologies and formerly asserted by Spider Search Analytics (owned by well-known NPE Bradley Liddle).”

And another proxy of the same troll:

On December 30, Unified filed a petition for inter partes review (IPR) against U.S. Patent 8,023,647 owned by Universal Cipher LLC and formerly asserted by Cumberland Systems LLC (owned by well-known NPE Bradley Liddle).

Last but not least there’s Synchview, which also seems to be a proxy. In Jain’s words: “On December 30, Unified filed a petition for inter partes review (IPR) against U.S. Patent 6,788,882, owned and asserted by Synchview Technologies, LLC, an affiliate of IP Investments Group LLC, a well-known NPE. The ‘882 patent, directed to a digital video recorder (DVR) that stores several programs at the same time in synchronization with each other, has been asserted against a number of broadcasting and cable companies such as Charter Communications (Spectrum), Mediacom, Atlantic Broadband, Cable One, and Blue Ridge Cable.”

The above is a reminder of how valuable PTAB can be when combating trolls; curiously enough, Intellectual Ventures’ connection to Dominion Harbor is rarely noted; it has literally thousands of proxies, based on the established media.

01.02.19

The Real Harm of Really Bad European Patent Grants

Posted in America, Apple, Asia, Europe, Law, Patents at 5:51 pm by Dr. Roy Schestowitz

The EPO is measuring speed rather than quality of work

Measuring

Summary: Patents that are of questionable validity/legitimacy do incredible harm/damage to the market; the EPO, however, is willing to look the other way while its rogue policies break the economy and remove products from the market

LAST MONTH Qualcomm dominated the news about patents. As Taro Yaguchi (Keisen Associates) put it, “Qualcomm And Apple Fighting In China Over Software Patents” and they fought elsewhere too, including in Europe (there was a widely-publiced ban on older models of iPhone). This was so widely reported/covered that we saw no urgent need to mention it (I was actually in Germany at the time, hence offline). Currently, only China is (still) a large economy that allows (explicitly) software patents. As we showed before, Qualcomm actively advocates software patents, which it then uses to embargo rivals’ products (or products of those unwilling to pay for questionable patents).

This brings us to the António Campinos-led European Patent Office (EPO), where software patents are being granted, not to mention all sorts of questionable patents on life and nature. As an insider noted earlier today, Team UPC publicly admits that European Patents granted by the EPO are of poor quality — a subject that Campinos won’t tackle. He just met the people in question and sought to remove the causes of criticism — whatever that means. He specified no actual plan. In the words of a Team UPC firm:

Furthermore, the remarkably high fees for a patent application and the EPO’s large reserves are rightly criticised. It cannot be that the EPO tends to want to make profits. Especially if you end up paying for mistakes with heavy fees.

And not only attorneys and lawyers, but also patent experts from the industry express criticism. According to the JUVE Patent Survey 2018, they want more professionalism. Only a few are behind the idea of the fastest possible registration process.

The EPO nowadays acts like a money-printing machine; it prints out monopolies, so what’s not to like? It’s just minting lots of rubbish, causing a gross hyperinflation of patents in Europe. Who will suffer? Certainly European companies on the receiving end of frivolous lawsuits.

12.28.18

The Demise of Patent Trolls and Software Patents in the US Continued in 2018

Posted in America, Microsoft, Patents at 3:10 am by Dr. Roy Schestowitz

Summary: With patent trolls’ bankruptcy filings, advocates’ departures and a decline in the number of granted US patents we’re seeing a sort of recession if not depression in the patent microcosm; that being the case, we’ll shift our focus to other things in 2019

THE year 2018 was a positive one for the US patent system if one skips the parts about Iancu’s controversial remarks and moves at the U.S. Patent and Trademark Office (USPTO). Iancu has already made himself enemies among scientists and technologists, unlike law firms.

“Iancu has already made himself enemies among scientists and technologists, unlike law firms.”Watchtroll’s Quinn, who is connected to Iancu, is stepping down as editor after 2 decades. His site will stagnate and we’ll no longer link to it. Patently-O‘s Crouch is barely writing anymore (maybe less than half what he did before) and he has just pointed out that the number of granted US patents decreased (as we expected) but not sufficiently as many fake patents like abstract patents are still being granted, contributing to the bubble associated with worthless patents (presumed to have value). “The USPTO has indicated that it “remains in normal operating status” despite the Federal Government funding crisis,” Crouch added.

In 2018 we saw SCOTUS ruling in ‘our’ favour and 35 U.S.C. § 101 wasn’t sabotaged in spite of many efforts. As a result of that, litigation ‘businesses’ perished. Here’s a report from Ruth Simon about one patent troll that we’ve covered here before: “Shipping & Transit LLC sued more than 100 mostly small companies in 2016, making it the largest filer of patent lawsuits that year. But when the Florida company recently declared bankruptcy, it valued its U.S. patents at just $1.

“Its demise followed three cases where companies fought back and were awarded legal fees after Shipping & Transit decided not to pursue the patent claims against them. Judges in the cases awarded a total of more than $245,000 in attorneys’ fees and costs to businesses in 2017.”

“Seeing that Watchtroll bashed SCOTUS at least 3 times this month (we’re omitting links, but the bashing is even in those headlines), it’s hardly surprising that Quinn steps down. All they have left is judge-bashing and court-bashing.”This “bankruptcy filing,” United for Patent Reform wrote, “shows how effective patent reform has been, and how it must continue.”

It will. The EFF wrote: “Lobbyists for patent trolls and patent lawyers keep seeking to roll back the Supreme Court’s crucial Alice decision. We expect those bills to keep coming in 2019, but we’ll be there to fight against them.”

By “lobbying” they also mean bribery by patent trolls, who are still a threat (incidentally, Microsoft patent trolls Intellectual Ventures and Finjan both lost important cases earlier this month). From the corresponding EFF post:

In 2018, technologists and users continued to be plagued by abstract, ridiculous software patents. The good news is there are more ways than ever before to fight back against those patents—some of them pretty effective.

Unfortunately, patent trolls and abusive patent owners are working overtime to knock down those recent improvements, and bring the patent system back to the proverbial “bad old days.” Before the Alice v. CLS Bank decision—four years old as of last June—it could cost millions of dollars just to convince a court to invalidate a single abstract patent. That was true even when those patents clearly described aspects of everyday life, like running a contest, displaying a menu with pictures, or teaching a foreign language.

Lobbyists for patent trolls and patent lawyers keep seeking to roll back Alice, promoting terrible legislation like the STRONGER Patents Act. Such proposals weaken our systems to challenge bad patents, and will hurt U.S. entrepreneurs and send innovation overseas. Despite that, we expect bills like that to come back in 2019, and we’ll be ready to fight back on behalf of startups and innovators.

Patent owners are pushing to neutralize Alice through the courts, as well. The most recent attempt is a case called Berkheimer v. H-P, in which a panel of Federal Circuit judges ruled that patent eligibility under Alice can require a full trial. This makes Alice much harder and more expensive to apply and, in our view, is inconsistent with the Supreme Court’s ruling. Last month, we asked the Supreme Court to take up the case and consider overturning Berkheimer.

Joe Mullin has meanwhile named “Stupid Patent of the Month”; the USPTO is making a farce of itself by granting these laughable software patents. As Mullin put it:

We’ve written many times about how the patent system is a poor fit for software. Innovation in the U.S. software industry happens despite, not because of, the thousands of software patents that are granted each year.

But software is not the only industry where patents make very little sense. In the 1990s, the Federal Circuit opened the door to patents on methods of doing business. While the Supreme Court tried to undo some of that damage, financial institutions are still hit with patent lawsuits. Many of these suits come from trolls that don’t produce anything. And yet, just as in the tech sector, there are some financial companies that keep heading back to the U.S. Patent and Trademark Office seeking a 20-year monopoly on some tactic or another.

This month, we’re highlighting U.S. Patent Number 10,147,140, which was recently granted to BNY Mellon Bank. The first claim of the ’140 patent uses a lot of financial jargon to describe an extremely simple process: checking social media for a particular event or statement, then making a trade based on that “investment triggering content.” One example of that: making a trade because someone put a hashtag in a tweet.

Even if this was a new product idea or investment strategy, it is not a new invention. The trend of stock market trading has been clear now for decades: automated trading has become faster and more computerized each year. BNY Mellon Bank did not invent computerized trading, social media, or anything else remotely technical. Rather, its patent proposes the idea of trading based on a social media event.

One can expect that a simple inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB) would eliminate it; the Federal Circuit would likely not even consider an appeal.

In 2019 we intend to cover USPTO matters less than in prior years. Seeing how things are going, we feel like goals have been fulfilled. Iancu is not a judge and he’s very limited in what he can do except grant even more bogus patents. Eventually the courts call the shots. Seeing that Watchtroll bashed SCOTUS at least 3 times this month (we’re omitting links, but the bashing is even in those headlines), it’s hardly surprising that Quinn steps down. All they have left is judge-bashing and court-bashing.

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