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07.19.19

35 U.S.C. § 101 Still in Tact in the United States and Software Patents Rot Away

Posted in America, Patents at 2:43 pm by Dr. Roy Schestowitz

It is meanwhile being reported that in Japan’s JPO — like in the EPO — patent applications decrease in number

35 U.S.C. 101 mirror

Summary: The United States, where the number of granted patents decreased last year, becomes more productive; there are more signs that patent maximalism (patent litigation, patent scope etc.) has receded

OUR LATEST daily links sum up some new patent cases/outcomes, including some that involve 35 U.S.C. § 101. USPTO-granted patents on software and life still aren’t likely to be tolerated by actual courts and in recent days we’ve seen many attacks on courts coming from Watchtroll. Do these ‘geniuses’ at Watchtroll really think that constantly attacking Federal Circuit judges (not just the Patent Trial and Appeal Board (PTAB) anymore) will lead to more favourable outcomes?

“Nowadays we focus on other topics that are deemed more relevant and strategic.”After summer recess expect nobody to mention the latest nonsense from Coons (this is his third time and third year trying). Expect courts to change nothing in their handling of 35 U.S.C. § 101. We feel somewhat vindicated for we predicted these things all along, just like the UPC’s demise.

We’re glad to know we no longer closely cover US patent cases and matters; seeing the way things are going there (and relegating articles on these matters to news clippings and picks), it doesn’t look like we’re missing much ‘action’. Nowadays we focus on other topics that are deemed more relevant and strategic.

07.14.19

Patent Certainty Waning, But That’s Still OK for Patent Trolls

Posted in America, Europe, Patents at 12:47 am by Dr. Roy Schestowitz

They go after vulnerable companies/people outside actual courts (with likely bogus patents like patents on maths)

Patents on maths

Summary: Patent maximalism remains a threat to everyone but patent lawyers (and patent office chiefs who measure their own performance only by the number of patents granted); best served are the patent trolls who extrajudicially attack already-impoverished parties behind closed doors

IT DOES not really matter how many software patents the European Patent Office (EPO) and U.S. Patent and Trademark Office (USPTO) grant if courts throw these out, as they do in Europe and in the US (citing 35 U.S.C. § 101). It does, however, help trolls because they don’t aim to actually file lawsuits and end up in court. This is why Campinos and Battistelli, by granting loads of fake patents, mostly help trolls.

UDL Intellectual Property’s [sic] Clair Curran has just said:

A recent decision by the EPO Boards of Appeal(T1218/14)highlights the pitfalls of using undisclosed disclaimers in patent claims.

“Seeing that patent trolls are best served by this status quo, we don’t suppose the FCC will allow UPC ratification.”Well, as things stand at the moment the EPO Boards of Appeal do not enjoy any form of autonomy or independence. They habitually say so themselves, even publicly. As long as that’s the case, which it still is, expect not much to improve at the EPO (e.g. in terms of patent scope/quality) and expect the UPC to never get off the ground. In a recent puff piece, published by EPO-bribed media, Bristows admitted they’re just faking progress. “The [UPC] preparatory committee is trying to give the impression of continuing momentum,” they said. There’s no momentum. None. Seeing that patent trolls are best served by this status quo, we don’t suppose the FCC will allow UPC ratification.

06.24.19

Patent Extremism: Stacking the Panels, the Surveys, the Hearings, the Debates

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

And then suggesting/insinuating/saying that anyone unlike them is a terrorist

Bush visits Brussels

Summary: Projection tactics would have the public believe that those who oppose corruption are simply radicals; patent polarity has come to the point where if one isn’t a “true believer” in blackmail (patent trolls) or opposes bribery, then one is simply a “fringe” and akin to terrorists

THE BIAS in media coverage about patents can be amusing at times (it’s composed by law firms). It’s only infuriating when they defame people, knowingly, as we explained one week ago. In Twitter, for example, people compare the likes of yours truly to “Taliban”. Apparently only the Taliban cares about patent quality then. We suppose SUEPO too is “Taliban” and lots of law professors are also “Taliban”. Even judges and Justices are “Taliban” (somebody, call the Marines! Raid SCOTUS and the Federal Circuit!). Sometimes they take it a step further and call voices of reason "Daesh". How truly ridiculous. At best, these are projection tactics. People who are unlike billionaire orthodoxy are all just ‘dangerous’ ‘radicals’. We wrote about that yesterday.

“So these radicals think that those bribed political figures don’t go far enough? Amazing. Truly amazing.”Consider for a moment who is actually breaking the law and burning things in protests. The new Director of the U.S. Patent and Trademark Office (USPTO) already ‘disses’ and looks for ways to work around — or put another way, violate — 35 U.S.C. § 101 (even if courts rebuff). The litigation ‘industry’ is so ‘up in arms’ that it took this fight to the political arena. Look at Coons for example. What we have here are politicians paid by large law firms to buy laws. Bribery? Sure, but they don’t use the “B” word. That might upset many other politicians who receive bribes similarly. Who is the radical here? Who is actually breaking laws? The outlaws aren’t critics of this bunch, i.e. people who highlight the corruption.

Based on his weekend’s Watchtroll piece (“Inventors Must Oppose the Draft Section 101 Legislation”) Paul Morinville, who is a textbook radical (look what he did on USPTO premises!), is not happy because the stacked panels put together by Coons et al were not 100% stacked (maybe ‘just’ 90%). The outline: “When it was announced that I would be testifying to the Senate Judiciary Subcommittee on IP about Section 101, I was surprised. Not only did they grant a critic of the 101 roundtables a chance to speak, but not one inventor who used patents to fund a startup has testified in any patent-related hearing in decades. This gave me faith that Senators Tillis and Coons are serious about fixing 101 right by considering what inventors need.”

So these radicals think that those bribed political figures don’t go far enough? Amazing. Truly amazing.

The patent trolls’ think tank and Battistelli ally (funded by his PR firm, cited by him afterwards), namely IAM, is once again asking its patent maximalist/troll subscribers about the European Patent Office (EPO) and guess what they say, complimenting António Campinos in the process (e.g. for granting software patents in defiance of European law). From the outline (there’s a paywall there):

Boost for António Campinos as he ends the first year of his presidency; and good news, too, for USPTO head Andrei Iancu

There’s also this weekend outline that said “IAM readers once again make the European Patent Office their number one; and they have good news, too, for USPTO head Andrei Iancu.”

“Can a law school be led by a thug who breaks the law and is well known for it?”This comes from a propaganda rag that takes money from thugs to promote these thugs’ agenda. As for Campinos, over the weekend we wrote about his one year in Office. He has been terrible and he only narrowly dodged a massive strike by his workers. Campinos still breaks the law. But yeah… we’re “Daesh” because we point this out.

We’ve meanwhile noticed that Antonella Gentile, over at IP Kat, advertises jobs/openings/vacancies at CEIPI, an institution which is run by a literal criminal, Battistelli (and formerly Campinos, who swapped seats with him). Have many members of staff quit? Many were reportedly very upset (staff/teachers, maybe students as well). Can a law school be led by a thug who breaks the law and is well known for it?

“Where did you graduate from?”

“Ha! That school of Battistelli?” The man who 'made' Alexandre Benalla.

06.23.19

With Water (Treatment) Already Patented It Won’t Take Long for Patents (and Patent Royalties) on Air

Posted in America, Europe, Patents at 2:36 am by Dr. Roy Schestowitz

Plastic fans of “innovation”!

Pep water drinking

Summary: A ‘paper economy’ is what Europe turns into if the current trajectory is followed (led by lawyers, not producers)

PATENT maximalism is a disease. It’s a very deadly disease, as we reminded readers a couple of hours ago in relation to the European Patent Office (EPO). Some software patents in Europe are being granted awards and one of the award recipients is a person who came up with a patent that prevents other people recycling (in a particular fashion). How is this beneficial to society? Battistelli was in the jury, so don’t expect sound rationale. António Campinos is the President, so it’s basically a banker running things (at the USPTO it’s law firms running the Office). Seeds, plants and even animals (including humans) are claimed to be ‘owned’ by few corporations — often corporations that aren’t even European! What is human kind doing to itself?

“Seeds, plants and even animals (including humans) are claimed to be ‘owned’ by few corporations — often corporations that aren’t even European! What is human kind doing to itself?”As someone told me a few months ago, it won’t be long before lawyers claim that their clients or “inventors” ‘own’ air as well, claiming/insisting that the oxygen came from their trees, which are their “AYE PEE” (IP). Too many trees with too many owners to keep track of? Worry not, there will be a “patent pool” (for air). It can be a tax with different ‘tiers’ for those who cannot afford it.

35 U.S.C. § 101 in the United States improved things a great deal, but Europe is going down the slippery slope of a ‘paper economy’ — an economy based on monopolies printed on a piece of paper rather than production (which these monopolies stifle). We certainly hope that patent examiners who read this site realise how self-harming patent maximalism really is. It’s a house of cards (cardboard/paper).

06.20.19

Almost Six Months After Iancu Said He Would Make Software Patents Great Again Nothing Has Actually Changed

Posted in America, Patents at 1:49 pm by Dr. Roy Schestowitz

A hoax like the person who gave him the job (after he had worked for him)

Trump and Iancu

Summary: We’re just a fortnight away from the ludicrous plan of Iancu celebrating 6 months (without accomplishing anything)

AT THE beginning of January there was a now-infamous (and unsuccessful) attempt to bring back software patents. There’s plenty of 35 U.S.C. § 101 and U.S. Patent and Trademark Office (USPTO) news in our next daily links and it’s still good news because nothing has changed. They can’t quite bring these patents back; courts keep rejecting these; new rejections can be found in Federal Circuit cases and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). The patent maximalists have just about given up. They hardly even write anymore.

“The patent maximalists have just about given up. They hardly even write anymore.”Watchtroll wrote as recently as yesterday (in headlines) that “After Alice: IP Stakeholders Comment on Alice’s Impact Five Years On” (they only quote parasites, as one can expect) and John Vandenberg is trying to revive that staged 'debate' from about a fortnight ago. Watchtroll must be rather upset that even Coons, with over a million dollars in bribes from law firms, could not overturn SCOTUS on Alice. These people are still incredibly sore and largely pessimistic because they cannot defeat or even water down 35 U.S.C. § 101/Alice. They’ve even just published “Perspective: Weakening Alice Will Weaken the U.S. Patent System’s Second Engine of Innovation” and all sorts of other nonsense. No programmers ever write there; it’s a parade of law firms and trolls.

Michael Borella has just shown that the Trump-appointed Iancu and his judge-bashing flunkies (he used to work for his company!) are trying to come up with other names/misnomers for abstract patents (e.g. “Computer-Implemented Functional Claiming”) and “there is a growing likelihood that Congress will strengthen § 112 in an attempt to disambiguate § 101″. From Borella’s post: (promoted in this tweet of theirs)

On June 11, 2019, the U.S. Patent and Trademark Office held a public presentation — a patent quality chat — regarding the interpretation of computer-implemented claims using functional language under 35 U.S.C. § 112. Mostly, this presentation was an overview of the USPTO’s January 7, 2019 Federal Register notice on the same topic. But, there is a growing likelihood that Congress will strengthen § 112 in an attempt to disambiguate § 101 (see the recent Senate Subcommittee on Intellectual Property testimony and the current draft bill). While most of the presentation was a reiteration of existing law and USPTO practice, taking another look at the current state of § 112 and where it may be going for computer-implemented inventions is a worthwhile effort.

The presentation begins with an acknowledgement that the Federal Circuit has raised issues with broad, functional claiming of software technologies without adequate support in the context of both § 112 and § 101. The USPTO’s position is that these problems can be addressed by properly applying § 112.

So basically they admit they cannot quite change § 101 and instead try to come up with a trick. But courts won't care. Moreover, judges can see exactly what Coons et al are attempting to achieve here and who funds them. This is more likely to further alienate courts, not sway their judgment. Deep inside the patent maximalists know it.

06.18.19

Patent Maximalism is Dead in the United States

Posted in America, Patents at 12:52 am by Dr. Roy Schestowitz

Dead End sign

Summary: Last-ditch efforts, or a desperate final attempt to water down 35 U.S.C. § 101, isn’t succeeding; stacked panels are seen for what they really are and 35 U.S.C. § 101 isn't expected to change

THE latest (this morning's) daily links contain a lot of good news under “Intellectual Monopolies”. SCOTUS keeps declining Alice-like challenges (for the 43rd time), University of Minnesota proxies cannot invoke immunity/exemption from Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs), prioritised examination is being scrutinised and so on. The patent maximalists aren’t saying much anymore; their blogs have become increasingly inactive and each month that goes by they have less and less to say. They’re becoming irrelevant. The USPTO‘s Director, Mr. Iancu, has been virtually invisible for months.

“The very purpose of these Senate hearings was very clear and those who organised these didn’t want anything balanced…”Gene Quinn of Watchtroll left as editor half a year ago. He now acknowledges (in “The Only Way to Counter False Claims on Patent Reform is to Enter the Debate”) that the patent hearings in the US Senate were rigged, or quite simply stacked. He admits there was an absence of voices in support of 35 U.S.C. § 101 and suggests that the problem is lack of participation by the lied-about side.

Is that so? No. Not really. The very purpose of these Senate hearings was very clear and those who organised these didn’t want anything balanced (these were designed for imbalance and were far from objective). People from groups such as CCIA and EFF pointed this out.

06.16.19

Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

Posted in America, Deception, EFF, Law, Patents at 9:08 am by Dr. Roy Schestowitz

“A stacked panel, on the other hand, is like a stacked deck: it is packed with people who, on the face of things, should be neutral, but who are in fact strong supporters of our technology. The key to stacking a panel is being able to choose the moderator. Most conference organizers allow the moderator to select die panel, so if you can pick the moderator, you win. [...] Thus, the “independent” panel ends up telling the audience that our technology beats the others hands down. Get the press to cover this panel, and you’ve got a major win on your hands.”
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Microsoft, internal document [PDF]

TripsSummary: Almost a week ago the ‘world tour’ of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)

THE NEW Director of the U.S. Patent and Trademark Office (USPTO) does not like 35 U.S.C. § 101, but there’s nothing he can do about it. He has already crafted some poor guidelines and it doesn’t change how judges decide cases. To make matters worse, the USPTO got bombarded with very negative comments, perhaps 90% of all the comments, based on some estimates we saw. The patent maximalists try to blame it on the EFF, which means that the EFF is doing something right (rallying supporters who actually support technology rather than litigation).

“The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators.”Sites of patent trolls (sponsored by them) tried hard to amplify this month’s Senate hearings, knowing these hearings were grossly biased, one-sided, and therefore misleading. The EFF was there, but it was surrounded by dozens of think tanks and lobbyists of litigators. It was so profoundly ridiculous that we couldn’t help but respond, repeatedly, even though we said that we’d try focusing on the European Patent Office (EPO) instead.

“Apple is a constant target of high-tech patent assertions, with 58 cases filed against it in the US last year (Lex Machina),” Battistelli‘s friends at IAM write at the moment. But actually, Apple itself is a patent aggressor and bully. Hardly the victim. Taking into account the Eastern District of Texas (EDTX), the EFF has just told this story of trolls whose targets include Apple. To quote:

For years, the Eastern District of Texas (EDTX) has been a magnet for lawsuits filed by patent trolls—companies who make money with patent threats, rather than selling products or services. Technology companies large and small were sued in EDTX every week. We’ve written about how that district’s unfair and irregular procedures made it a haven for patent trolls.

In 2017, the Supreme Court put limits on this venue abuse with its TC Heartland decision. The court ruled that companies can only be sued in a particular venue if they are incorporated there, or have a “regular and established” place of business.

That was great for tech companies that had no connection to EDTX, but it left brick-and-mortar retailers exposed. In February, Apple, a company that has been sued hundreds of times in EDTX, closed its only two stores that were in the district, located in Richardson and Plano. With no stores located in EDTX, Apple will be able to ask for a transfer in any future patent cases.

In the last few days those stores were open, Apple was sued for patent infringement four times, as patent trolls took what is likely their last chance to sue Apple in EDTX.

This month, as part of our Stupid Patent of the Month series, we’re taking a closer look at one of these last-minute lawsuits against Apple. On April 12, the last day the store was open, Apple was sued by LBS Innovations, LLC, a patent-licensing company owned by two New York patent lawyers, Daniel Mitry and Timothy Salmon. Since it was formed in 2011, LBS has sued more than 60 companies, all in the Eastern District of Texas. Those defendants include some companies that make their own technology, like Yahoo, Waze, and Microsoft, but they’re mostly retailers that use software made by others. LBS has sued tire stores, pizza shops, pet-food stores, and many others, all for using internet-based maps and “store location” features. LBS has sued retailers that use software made by Microsoft, others that use Mapquest, some that use Google, as well as those that use the open-source provider OpenStreetMaps.

So it has become a serious problem for Free/Open Source software, even directly. Thankfully, nowadays it’s easier to tackle the underlying patents these trolls leverage. Will any of that change? Not any time soon. We doubt it.

Regardless, the EFF’s Joe Mullin wrote the following some days ago:

xperts Warn Congress: Proposed Changes to Patent Law Would Thwart Innovation

It should be clear now that messing around with Section 101 of the Patent Act is a bad idea. A Senate subcommittee has just finished hearing testimony about a bill that would wreak havoc on the patent system. Dozens of witnesses have testified, including EFF Staff Attorney Alex Moss. Alex’s testimony [PDF] emphasized EFF’s success in protecting individuals and small businesses from threats of meritless patent litigation, thanks to Section 101.

Section 101 is one the most powerful tools patent law provides for defending against patents that never should have been issued in the first place. We’ve written many times about small businesses that were saved because the patents being used to sue them were thrown out under Section 101, especially following the Supreme Court’s Alice v. CLS Bank decision. Now, the Senate IP subcommittee is currently considering a proposal that will eviscerate Section 101, opening the door to more stupid patents, more aggressive patent licensing demands, and more litigation threats from patent trolls.

Three days of testimony has made it clear that we’re far from alone in seeing the problems in this bill. Patents that would fail today’s Section 101 aren’t necessary to promote innovation. We’ve written about how the proposal, by Senators Thom Tillis and Chris Coons, would create a field day for patent trolls with abstract software patents. Here, we’ll take a look at a few of the other potential effects of the proposal, none of them good.

This will hopefully be our last post in this subject (we have already published about half a dozen). Over the past week we’ve kept an eye on Twitter (sadly, a lot of input goes into those social control media sites instead of proper news sites) and here’s what we can report as concisely as possible.

“So it has become a serious problem for Free/Open Source software, even directly.”First of all, the hearings were full of buzzwords. They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software. It isn’t just done in Europe but also in the US and in Israel [1, 2] (we mentioned this the other day; that same article has been reposted everywhere they could fling it).

Benjamin Henrion (FFII) quoted and said: “the ILPO adopted the “technical effect” test used in the EU jurisprudence” while there is no European Union involved, only rogue EPO administrative tribunals…”

That’s based on a purely promotional piece, more or less marketing and lobbying by law firms, but it’s still worth entertaining again because we see the same buzzwords brought up in the hearings. As one person put it: “Senate Judiciary Committee on 101: Laurie Hill (Genentech); Genentech pioneers biologics; Under 101/Alice/Mayo, many of these inventions are unpatentable; AI/bioinformatics/biology is the future of medicine but is not patentable.”

“They were, as usual, misusing/misapplying buzzwords like “HEY AI” (AI) to promote fake patents on software.”There it is: “AI”. And again here: “The SCP (Standing Committee on the Law of Patents) at @WIPO has just published a revealing document on AI and Patentability under the title “Background document on patents and emerging technologies”.”

Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.

Henrion also said (having watched these dull hearings): “Till and Coons strongly motivated to restore software patents, citing buzzwords such as “AI”, “quantum computing”, or “5G”…”

He found this tweet: “The AI hype is pervasive and everybody wonders when the bubble will burst, but it is true this technology poses some challenges to patentability…”

It links to this blog post by Leopoldo Belda Soriano. He says “AI” many dozens of times.

“Of course WIPO too participates in the “HEY AI” (AI) hype; that’s just done in order to grant fake patents on maths — no doubt patents that would be rejected if tested by courts.”On the rogue composition of the panels, as expected, much has been said as well. Here’s the list of people. Stacked panels. Very stacked. Patent zealots were (at the time) linking to things like “Final Panelists at Senate 101 Hearing Stress Real-World Effects of Status Quo, Tillis Signals Changes to Draft Text” from Watchtroll’s Eileen McDermott and other blogs like Patently-O.

Henrion took note of IBM’s role in these hearings when he wrote: “Senate hearing: IBM has also used super low quality software patents such as a diff between 2 contact lists to extract money from Groupon [] Qualcomm says they want to patent encoding algos such as OFDM, you could infringe them with a pen and paper https://en.wikipedia.org/wiki/Orthogonal_frequency-division_multiplexing … [] At least americans are pretty clear about software patents, and not this CII mess…”

Henrion carried on speaking about IBM: “Nokia and IBM thanks Tillis and Coons for an “open legislative process”, while the interventions are all stacked by the patent community [] Not inviting small companies nor software developers “reminding those present that they had specifically invited Apple, Google, Microsoft, Oracle and Dell, who declined to come in favor of being represented by industry associations.”

Jan Wildeboer, who will soon be an IBM employee, expressed concerns about policies that are actually supported by IBM: “51 pages on so-called #FRAND licensing of Standard Essential Patents (SEP) by CEN/CENELEC. And they manage to completely avoid the simple question of how such schemes would work for #OpenSource implementations (Hint: it’s not possible IMHO). https://www.cencenelec.eu/news/workshops/Pages/WS-2019-014.aspx …”

“On the rogue composition of the panels, as expected, much has been said as well.”All these patents on maths are highly problematic. They oughtn’t be granted. On went Henrion: “Michael Blankstein of Scientific Games wants to restore software patents for games, and wants US to avoid copying the European Patent Convention, which explicitely bans computer programs, and rules for playing games [] Cyborg patents logic to compress data, wants to see Alice abolished https://cyborg.co/tech/intellectual-property [] John D. Vandenberg says Alice is not a mess, says the proposed bill will restore software patents…”

Alice actually restored order. How is elimination of fake patents not a positive thing? For patent trolls it certainly isn’t… but should they count?

The CCIA’s main patent person soon weighed in as well, followed by Henrion: “The “innovation” is using existing data mining techniques on data sets to determine a correlative relationship. Is that what we want to promote with patents? [] [Spot the disconnect: Tillis/Coons, op-ed: “We have no intention of overruling that central holding of the Myriad decision.” Tillis/Coons, bill: ‘No implicit exceptions to subject matter eligibility shall be used and all cases regarding those exceptions are abrogated.” [] Also, Tillis made it a point to complain that tech didn’t come. Given that the 4-1 stacked panels today on other issues, is it any wonder those companies didn’t want to show up?”

“That’s just political corruption (check who’s bribing Coons for this bill).”The funding of Coons (over a million bucks from lawyers and liars) means that lying is part of the show. As Henrion explained: “Lawyers always win when they own the “patent reform”, law firms sending donations to Senators @ChrisCoons , I guess “Small Businesses” don’t donate enough…”

That’s just political corruption (check who’s bribing Coons for this bill). It’s quite blatant and obvious.

“ACLU popping up a banner against genes patents at the senate hearing on the patent maximalist bill,” Henrion added, “where are the protesters against software patents?”

Here’s a photo of it.

ACLU banner

On the other hand we could also quote some patent maximalists, to whom these stacked hearings were a festival of joy; one of them said: “Senate Judiciary Committee on 101: Sean Reilly (Clearing House); Financial Services Industry has strong interest in strong patent system; 101/Alice has killed low quality patents; Clearing House opposes any changes to status quo.”

“The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets.”Another one quoted “George, Invitae (1:11:00): “As you consider legislative proposals, instead of abrogating 150 years of precedent case law [e.g. fixing 101], I believe the right approach is to start where the law is correctly working…” https://www.judiciary.senate.gov/meetings/the-state-of-patent-eligibility-in-america-part-iii …”

Working for who? Lawyers? Trolls? Science? Anyway, these hearings are now nearly a week behind us. As we’ve said right from the very start, we don’t expect these to change anything. The sponsors called these initiatives of theirs “bipartisan” to give an illusion of widespread consent, but what they really meant was, they got a couple of politicians from two ‘opposing’ (corporate) parties inside their pockets. So much for ‘public’ support…

2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

Posted in America, Law, Patents at 7:36 am by Dr. Roy Schestowitz

End of spring, end of software patents

End of spring

Summary: With a fortnight left before the second half of the year it seems evident that software patents aren’t coming back; the courts have not changed their position at all

THE YEAR 2019 was supposed to be all about the European Patent Office (EPO) and GNU/Linux — the latter topic we’ve neglected in recent years and are gradually catching up with (e.g. concerns about the Code of Conduct). One single aspect we still watch at the USPTO is 35 U.S.C. § 101, which we hope remains in tact for many years to come. Last year and the year before that it became abundantly clear that suing with software patents in the US was a losing bet, especially if appeals were to reach the Federal Circuit. SCOTUS kept declining to even revisit the subject and last year it reaffirmed the status of the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs). Nothing has really changed since then. In our daily links we include stories about cases that support this claim; as we shall show later, even attempts to bypass or change the law will most likely fail. As Janal Kalis put it the other day: “In re Gitlin (Fed. Cir. 2019) The CAFC upheld the PTAB’s holding of patent ineligibility under 101/Alice; The CAFC ignored the USPTO eligibility guidelines: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/18-1461.Opinion.6-13-2019.pdf …”

“The Federal Circuit remains stubborn and strong in the face of smears and strong-arming by patent maximalists.”Rightly so; that’s just more of the usual. Courts refuse to be sort of manipulated if not bullied by the likes of Battistelli and Campinos, who not only lobby for software patents in Europe but also abuse judges who stand in their way.

Eileen McDermott, this year’s new editor of Watchtroll, published “Federal Circuit to University of Minnesota: No State Sovereign Immunity For You” (we omit all links to Watchtroll this year).

Again, as above, that’s just more of the same. Patents cannot be shielded from justice using such ‘scams’. I got threatening letters from facilitators of these 'scams' as recently as last year.

So here we are in the middle of 2019 (two weeks left). The Federal Circuit remains stubborn and strong in the face of smears and strong-arming by patent maximalists. Former chief judges cannot quite change Sharon. Sharon Prost is the Chief United States Circuit Judge. She has done splendid work since taking over, whereas those former judges became little more than lobbyists — a matter we’ve criticised many times before. So did Benjamin Henrion (FFII) and few other people, who can differentiate/tell apart judge-bashing from reasonable things, e.g. highlighting ethical breaches like those which forced removal/resignation of Sharon’s predecessor (IAM wanted him appointed at to top again).

“Patent maximalism is warning in the US.”The way things stand, we see no reason to spend entire weekends covering US patents (as we did in past years). Patent maximalists’ sites such as The National Law Review and JD Supra reflect upon the new status quo; many US patents are presumed invalid and it takes a lot of effort to just keep these “alive” (the term they use, equating them with organisms); these patent law firms/lawyers, who author these pieces, obviously address their clients, trying to persuade them to get fake patents, avoid delays, and then keep these “alive”; they want more money to keep these fakes “alive” (e.g. for blackmail purposes):

Patentees may obtain additional PTA if the USPTO’s calculation of “applicant delay” includes a period of time during which the patentee could have taken “no identifiable effort” to avoid. However, the onus is entirely on the patentee to identify and correct the USPTO’s error.

This is one aspect among several that weaken US patents and at some stage these law firms will need to ‘come clean’ and admit to clients that the patent bubble has burst and their services aren’t worth the high price anymore. The number of US patents granted last year was a decrease compared to the prior year (we’re not sure about the number of applications), which may suggest that the Office too is aware of that. Patent maximalism is waning in the US.

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