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04.23.17

For the Fordham Echo Chamber (Patent Maximalism), Judges From the EPO Boards of Appeal Are Not Worth Entertaining

Posted in America, Deception, Europe, Microsoft at 9:59 am by Dr. Roy Schestowitz

Microsoft is the sole leading sponsor this year (same as last year)

Bristows and Microsoft

Summary: In an event steered if not stuffed by patent radicals such as Bristows and Microsoft (abusive, serial litigators) there are no balanced panels or even reasonable discussions

THE EPO is not interested in patent quality. Everyone knows it by now, both inside and outside the Office.

According to patent maximalists’ tweets from Fordham, “[i]n the EPO it is easier to get a method for diagnosis patent than in the US.”

“Bristows staff — the one who ‘took over’ IP Kat — was attending this echo chamber of the patent microcosm recently.”Well, CPIP treats patent quality as a nuisance (they ask for Alice to be undermined and software patents to be back to old glory). They do not treat quality as a desirable feature; they profit not from quality. The same goes for some firms that say the EPO more easily grants software patents than the USPTO these days. Bristows staff — the one who 'took over' IP Kat — was attending this echo chamber of the patent microcosm recently. She professed admiration for Microsoft’s chief patent bully and quoted (or paraphrased) a judge as saying that “everyone is equipped to deal with science.”

“Sorry to disappoint the Honorable judge,” said one of the comments, “but that is an absurd comment, demonstrating ignorance and delusion.” An earlier comment said: “No judges from the EPO Boards of appeal present?”

“At two levels, both technical and juridical, the EPO has been unhinged and is not totally out of control.”Of course not! That would be disruptive to the echo chamber.

The attack on the appeal boards has been (in our humble assessment) intended to help mask the sharp decline in patent quality and/or suppress criticism related to that. At two levels, both technical and juridical, the EPO has been unhinged and is not totally out of control.

“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. Since you can’t expect representatives of our competitors to speak on your behalf, you have to get the moderator to agree to having only “independent ISVs” on the panel. No one from Microsoft or any other formal backer of the competing technologies would be allowed -just ISVs who have to use this stuff in the “real world.” Sounds marvellously independent doesn’t it? In feet, it allows us to stack the panel with ISVs that back our cause. 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.”

Microsoft, internal document [PDF]

04.21.17

Even Patent Bullies Like Microsoft and Facebook Find the Patent Trial and Appeal Board (PTAB) Useful

Posted in America, Microsoft, Patents at 6:45 pm by Dr. Roy Schestowitz

PTAB

Summary: Not just companies accused of patent infringement need the PTAB but also frequent accusers with deep pockets need the PTAB, based on some new figures and new developments

THE US has virtually excluded software patents, if not at the USPTO, then at least at the higher courts. Moreover, a lot of software patents are being eliminated outside the courts, owing to PTAB.

For those who used to make money from software patents, notably patent law firms, this trend may be an existential threat, so such firms just give bad advice almost every day. They interject themselves into news sites and give the impression that software patents are OK. The latest anti-Alice rant comes from the patent microcosm, as usual, and now it’s Patricia Martone who writes that the “Court declined to hold that all improvements in computer-related technology and all software patents are inherently abstract and can never pass the Step One test for patentable subject matter.”

“…a lot of software patents are being eliminated outside the courts, owing to PTAB.”The article is actually a bunch of tips for working around restrictions and patenting software. Don’t pursue these patents, however, as most such patents end up enriching nobody but patent lawyers. That is why they keep pretending that things are OK and they can work their way around Alice.

Curiously enough, as this new article points out, PTAB is at it again (squashing patents) and for a change it’s a patent aggressor behind the petition, along with a company it previously blackmailed with patents. Here is the key parts:

The US Court of Appeals for the Federal Circuit mostly affirmed a Patent Trial and Appeal Board (PTAB) ruling that a patent challenged by technology companies ZTE and Microsoft is invalid.

IPR Licensing is the owner of the patent, US number 8,380,244, which describes and claims “dual mode” communications devices that can use cellular and Wi-Fi networks.

“For those who used to make money from software patents, notably patent law firms, this trend may be an existential threat, so such firms just give bad advice almost every day.”“How Facebook learned to love the PTAB,” IAM also wrote today, alluding to this news about all-time highs at PTAB, which even the pro-trolls sites bother to note. The author admits that patent reformers are succeeding but fails to identify patent trolls as such. “There has been much to pick over from the litigation data for the first quarter of this year,” he says. “There was the ongoing fall in the number of new cases which has dropped to levels not seen since 2011. There was also a notable spike in activity at the Patent Trial and Appeal Board (PTAB), which according to analysis from Unified Patents made it the most active quarter ever with 561 reviews filed.”

“What’s noteworthy here is that PTAB comes handy even for patent maximalists; it serves justice faster than the courts and at a lower cost.”Notice how many of the patent holders are LLCs that are mostly likely patent trolls. To quote, “Facebook’s 21 reviews for Q1 were filed against five patent owners with three NPEs — Skky LLC, Sound View Innovations LLC and Windy City Innovations LLC — accounting for all but two according to data from Lex Machina. The company is in litigation with all five patent owners. This PTAB strategy has been seen before with Apple the leading exponent but as Facebook’s recent burst of activity shows, the social media business is a quick learner.”

Well, it shows that patent trolls are preying on such sites. Suffice to say, the patents in question would be software patents — something that Facebook too has been stockpiling and sometimes using for litigation purposes.

What’s noteworthy here is that PTAB comes handy even for patent maximalists; it serves justice faster than the courts and at a lower cost.

In Spite of Lobbying and Endless Attempts by the Patent Microcosm, US Supreme Court Won’t Consider Any Software Patent Cases Anymore (in the Foreseeable Future)

Posted in America, Courtroom, Patents at 10:12 am by Dr. Roy Schestowitz

Alice stands firm.

Alice (software)
Software patents are being invalidated en masse using Alice. Not to be confused with Alice the software.

Summary: Lobbyists of software patents, i.e. proponents of endless litigation and patent trolls, are attempting to convince the US Supreme Court (SCOTUS) to have another look at abstract patents and reconsider its position on cases like Alice Corp. v CLS Bank International

THE USPTO can grant as many software patents as it wants, but American courts reject these and litigation with such patents has become an unattractive, risky strategy. Even pursuing such patents in the first place may prove to be a waste of time and money, irrespective of the outcome at the patent office.

Earlier this week we spotted this press release about HEVC — certainly a massive software patents trap [1, 2] (evergreening). “This innovative product utilizes Beamr’s 29 granted patents and 18 pending patent applications to produce HEVC video encodes that are up to 50% smaller than Beamr’s market-leading HEVC software encoder, Beamr 5,” the press release stated. Wanna bet all of these patent applications, even if they got granted, would be thrown away by courts like the Court of Appeals for the Federal Circuit (CAFC), if not SCOTUS above it? This whole thing in an exercise in ‘thicketing’ — i.e. making up for the invalidity of patents by quantity rather than quality (to make legal challenges more lengthy and thus expensive). Microsoft does this quite a lot. It flings a large pile of lousy software patents at poor companies and demands that they settle (pay ‘protection’ money) or spend years in courtrooms (at the expense of millions of dollars, making settlement the cheaper option, securing the patents from much-needed scrutiny).

“Even pursuing such patents in the first place may prove to be a waste of time and money, irrespective of the outcome at the patent office.”The matter of fact is, software patents should no longer be issued by the USPTO. These contribute to extortion, not innovation. Only the law firms profit from that.

The other day we saw this new rant about Alice, courtesy of Matthew Schantz who profits from legal chaos. That’s just latest example of patent law firms promoting software patents and yearning for them. Watch the language of optimism and positivism: “Software patents have seen better times. The glory days of the 1980s and 1990s, after the U.S. Supreme Court held in Diamond v. Diehr (1981) that inventions implemented in software are not unpatentable just because they are implemented in software, continued long past the generalized expansion of patentable subject matter by the Court of Appeals for the Federal Circuit in State Street Bank v. Signature Financial Group (1998). But the Supreme Court shook the foundations of the software patent world in 2012 (Mayo v. Prometheus) and 2014 (Alice Corp. v. CLS Bank International), leaving business leaders (and their patent attorneys) to wonder whether — or even hope that — software patents were dead. While the U.S. Patent and Trademark Office and courts have struggled to find reasonable, “new normal” limits on software patents that are practical in application and justifiable under precedent, recent cases reflect a maturing of the law surrounding patents on software-implemented inventions.”

“The matter of fact is, software patents should no longer be issued by the USPTO.”That’s good. That’s very desirable. Just ask any software professional about it. These professionals do not want software patents, unlike those who pretend to speak on ‘their behalf’. Some of them repeatedly heckle PTAB and try to slow it down, for it invalidates a growing number of software patents these days (a lot more than courts do). Patently-O, one of the scarcely-closeted opponents of PTAB, only accentuates the negatives, not the positives, and then proceeds to looking into SCOTUS cases that have nothing whatsoever to do with software patents. The first of these says: “A newly filed petition for writ of certiorari offers a substantial challenge to the quick-look eligibility decisions that have been so popular among district courts. The challenge here is especially focused on no-evidence eligibility decisions that serve as a substitute for an obviousness determination.”

Again, he is hoping to slow down (or prevent) invalidation of bogus patents. The second of these says: “The Court affirmed that requirement in a non-patent case, Goodyear Tire & Rubber Co. v. Haeger (Apr. 18, 2017). In that case, Goodyear engaged in a years-long effort to hide key documents from the plaintiffs, who, not knowing of them, settled the case. When they sought sanctions, the district court awarded all of the litigation fees the plaintiff had incurred from the time when the scheme had begun: $2.7 million. It also held, conditionally, that $2 million was caused directly by the shenanigans.”

“Maybe we can urge some readers of ours to submit an amicus brief to explain why software patents are a bad idea and Alice already tackling the issue means that there’s no point revisiting the matter.”But this case isn’t even about patents. Why is Patently-O covering this?

The threat that SCOTUS will revisit Alice-type cases isn’t quite there, at least not yet. Watchtroll is trying to change this right now, by urging (in the form of amici) an escalation of a software patents case to SCOTUS. To quote: “BBiTV appeals from the Federal Circuit’s Rule 36 affirmance of two summary judgment decisions in which the district court found claims of U.S. Patent No. 7,631,336, entitled “Method for converting, navigating and displaying video content uploaded from the internet to a digital TV video-on-demand platform,” to be directed to the abstract idea of “using the same hierarchical ordering based on metadata to facilitate the display and locating of video content.” The following excerpts of the Petition set forth the issues presented and portions of BBiTV’s arguments. Amicus briefs in support of the Petition are due by May 15, 2017.”

Maybe we can urge some readers of ours to submit an amicus brief to explain why software patents are a bad idea and Alice already tackling the issue means that there’s no point revisiting the matter.

“Software patents are on the rocks in the United States, but this should not be taken for granted and we must never rest on our laurels knowing that the opposition, i.e. those who prey on software developers, try to overturn and cancel prior decisions.”We are no doubt going to see many more attempts like the above to crush Alice. There is in fact a whole "task force" now, led by IBM and its lobbyists (people like David Kappos), dedicated to doing just that.

Software patents are on the rocks in the United States, but this should not be taken for granted and we must never rest on our laurels knowing that the opposition, i.e. those who prey on software developers, try to overturn and cancel prior decisions.

04.19.17

Patents on Business Methods and Software Are Collapsing, But the Patent Microcosm is Working Hard to Change That

Posted in America, Patents at 9:39 am by Dr. Roy Schestowitz

People like Robert Sachs (on the right) try to cherry-pick cases and make these precedential (to help patent maximalists/aggressors)

Robert R. SachsSummary: The never-ending battle over patent law, where those who are in the business of patents push for endless patenting, is still ongoing and resistance/opposition is needed from those who actually produce things (other than litigation) or else they will be perpetually taxed by parasites

FOLLOWING a SCOTUS decision nearly 3 years ago the patent landscape has not been the same in the US. The “effect of the Supreme Court’s Alice decision was to kill about 75% of all BM [business method] patent applications stone dead,”
Mark Summerfield has just said, having said the same thing earlier this year. Here is the part about software patents:

Software patent grants, however, continue to track the rates at which patents are issued by the USPTO across all fields of technology. I therefore feel confident in reiterating my earlier comments that ‘software patents’ in general are not in trouble. There is no evidence that the mere fact that computer software is used to implement an invention – even where the invention relates wholly to computer technology, such as in user interfaces, document processing, databases, and so forth – is a barrier to patent eligibility in the US.

But these die at the courts and in the Patent Trial and Appeal Board (PTAB), so this merely indicates that the USPTO does not do enough to account for these decisions. We wrote this many times before.

Watch Fenwick & West, a law firm that habitually attacks Alice, still working hard this month not just to spread software patents but also business method patents. To quote the latest from them:

On Wednesday, the Federal Circuit, in a per curiam order, denied SHzoom’s motion to make the Trading Technologies opinion precedential. The order of course gave no reasons for the decision. Nonetheless, the underlying decision is still a good one for patentees and applicants.

While not binding on the USPTO, it can nonetheless be argued as persuasive authority with examiners where the facts in the application “uniquely match” those in the case. Prosecutors should consider arguing this case to examiners where they have specifically claimed graphical elements that provide specific functionality.

We certainly hope that these patent maximalists don’t get their way. Software patents have long hobbled Free/Open Source software and proprietary software too. Up until now, including in 2017, these have been turning software freedom into something synonymous with “infringement”. As someone put it some days ago: “*whispers into the air* …the final patents on MP3 technology expired today…”

It’s about time. How many people suffered due to these patents? How many people struggled to get decoders to play their audio files? Or resorted to do something against patent law?

Finally, as an aside, we used to think more highly of Law 360, but Matthew Bultman adopts the misleading language of the patent microcosm, where defense from patents magically means “attack” (on the patent/s). This is not an attack, it’s a defense, but watch how Bultman put it both in the headline and the opening paragraph:

PTAB Rejects Some Follow-Up Attacks To Software Patents

The Patent Trial and Appeal Board has rejected a handful of recent attacks brought by Xactware Solutions Inc. against a rival’s patents covering aerial rooftop measurement software, saying the New Jersey company was morphing its challenges based on earlier board decisions.

This is another example of PTAB stepping in to reassess and usually correct the USPTO. The patent microcosm likes to just cherry-pick the situation in which the patents “survive” (their misleading term) scrutiny. As in the above…

IAM, the Patent Trolls’ Voice, is Trying to Deny There is a Growing Trolling Problem in Europe

Posted in America, Deception, Patents at 9:12 am by Dr. Roy Schestowitz

Cheerleading for patent trolls (and their facilitators) while attacking/smearing those who stand in their way

IAM THE VOICE OF PATENT TROLLS

Summary: IAM Media (the EPO’s and trolls’ mouthpiece) continues a rather disturbing pattern of propaganda dressed up as “news”, promoting the agenda of parasites who drain the economy by extortion of legitimate (producing) companies

THE site/’magazine’ known as IAM is quite a riddle. Actually, it’s not much of a riddle; it’s more like a think tank and it no longer does a good job hiding it. Just watch what it covers almost every day this year.

“So a Korean patent troll, having a go in the US, loses.”Alluding to a case of a Korean troll-like entity, ETRI, and Huawei (China), a reasonably OK site said: “A Korean patent company behind a slew of infringement suits is actually just a litigation agent for the true patent holder and therefore doesn’t have standing in court, a California federal judge ruled in a Monday decision dismissing a long-running case against Huawei Technologies Co.”

So a Korean patent troll, having a go in the US, loses. IAM, on the other hand, called this a campaign to “monetise IP”. Note that the plaintiff is actually called “SPH America, LLC” (classic cover for a troll); IAM says it’s dubbed “litigation agent”, but it’s actually a troll — a word that hardly exists in IAM's lexicon because it's a trolls denialist that is funded by some trolls. It denies that companies that are patent trolls actually are trolls! Talk about whitewashing or reputation laundering.

“It denies that companies that are patent trolls actually are trolls! Talk about whitewashing or reputation laundering.”The lobbying site of trolls, IAM, also seems upset this week at claims of troll (re)surgence (challenge to the UPC actually), in this much belated post about IP2Innovate (IP2I). To quote: “Just as important, it seems to me, is that beyond equating trolls with patent assertion entities, IP2I provides no definitions of what it is that it is actually referring to. So, while it is certainly true that some do directly equate PAEs with trolls, it is equally the case that many others do not. That would include IAM, for example.”

IAM is funded by trolls. It’s in bed with them. It’s basically trying to groom them and it challenges those who dare point out that there is a problem. It was actually IAM itself, as we covered before, admitting a surge in NPE (not PAE) activity in Germany. What is this if not trolling? IAM itself admitted, back in late March, that troll litigation in Germany was booming. Suddenly it’s upset that IP2I says the same thing? We guess they’re so desperate for the UPC, so seeing the IP2I antagonising it makes IAM’s paymasters sweat a little. Facts are temporarily suspended, as usual, and IAM tries to delegitimise and discredit IP2I.

“Sites like IAM still deny that trolls exist, so while they do know that there’s a rise in troll activity in Europe they just don’t want it to be called “troll activity”.”Remember that IAM also attacked the FTC’s report on PAEs, i.e. patent trolls. Why even carry on pretending it’s a news site? It’s a think tank for the highest bidder. It keeps attacking every single threat to trolls. Even refuting its own reporting when it suits it! “The evidence was,” as I explained yesterday, “among other places, in IAM itself…”

Sites like IAM still deny that trolls exist, so while they do know that there’s a rise in troll activity in Europe they just don’t want it to be called “troll activity”. They use all sorts of euphemisms (like “monetise IP” above).

“Of the 12 patent suits filed today,” wrote United for Patent Reform a short while ago, “11 were filed by patent trolls — that’s 92%.”

“Right now in Europe the proportion of troll lawsuits is still low, but it is rising sharply. The UPC, if it ever became more than a sordid fantasy, would accelerate this.”Imagine what will happen if this comes to Europe. Right now in Europe the proportion of troll lawsuits is still low, but it is rising sharply. The UPC, if it ever become more than a sordid fantasy, would accelerate this.

The matter of fact is, the world is becoming a tough place for trolls. Some go bankrupt and some try to reinvent themselves. Canada’s most notorious patent troll, for example, is obviously failing and trying to do something else now, as even IAM admits right now. To quote:

Yesterday’s news that WiLAN will purchase an Internet of Things (IoT) business as it looks to diversify away from patent licensing represented another nail in the coffin of the NPE sector as we know it.

WiLAN is acquiring International Road Dynamics, an Industrial IoT business, for $47.7 million and following that deal will change its name to Quarterhill. WiLAN will then become the patent licensing subsidiary of the new business, responsible for monetising the more than 10,000 patent assets that the Canadian NPE has built up in the US alone. The company is not jettisoning patent licensing completely but in an interview this morning CEO Jim Skippen made clear that the business is no longer convinced that investing in patent deals is the right approach. “We will look at patent acquisitions but more and more we’re not sure that investing significant amounts of capital in patents really makes sense for us,” he said.

Recently, IAM promoted trolls in London (Unwired Planet) almost every single day and sometimes more than once a day! One must always remember the raison d’être of IAM if or when reading it. We don’t read it for entertainment value but in order to track and rebut the latest misinformation from Joff Wild and his boys (no women there).

The Patent Microcosm Keeps Attacking Every Patent Office/System That is Doing the Right Thing

Posted in America, Asia, Patents at 8:42 am by Dr. Roy Schestowitz

Chess

Summary: Patent ‘radicals’ and ‘extremists’ — those to whom patents are needed solely for the purpose of profit from bureaucracy — fight hard against patent quality and in the process they harm everyone, including individual customers

THE USPTO is under attack from the patent microcosm. They are still working overtime to chase away Director Lee, now basing claims that she is on her way out on some article about something else. At the same time they also keep bullying the Indian patent office because it disallows software patents and, as mentioned here before, since Japan is getting tougher on patents, the patent microcosm is not happy about it either. The patent system in Japan is improving (better quality) and right now IAM (the trolls’ think tank) bemoans it and says: “Continuing a trend manifested over the past decade, the number of patent applications submitted to the Japan Patent Office (JPO) fell again in 2016, as businesses reappraise the role that Japanese assets play in their IP portfolios. However, the decrease was significantly smaller than in previous years – suggesting that filing rates may be levelling out, for now.”

“Fundamental ideas are being patented and companies that produce and sell a lot of things are being preyed on (at the expense of customers).”Why is this happening? Because the patent microcosm wants legal chaos. It profits from that. Companies like Samsung, for example, are being sued by all sorts of trolls and extorted by Microsoft. “A jury found for Rembrandt and awarded $15.7 million in damages,” Patently-O writes this week about a case against Samsung. “On appeal, the Federal Circuit has affirmed on infringement and validity – but rejected the lower court’s finding that the patent had been properly marked.”

In addition, Samsung is being attacked by Apple in several different patent lawsuits, using truly dubious patents that we wrote about before. Apple has some truly awful patents that make the USPTO look worse (and the same goes for the EPO under Battistelli). As one good article noted the other day, the notorious “rubber banding” patent is back in action:

Apple went all-out in its patent assault on Samsung beginning in 2012, when Steve Jobs’ promised “thermonuclear war” against Android became a reality. The patents used by the Cupertino device maker weren’t just challenged in court, though. Various parties have challenged Apple’s most important patents at the US Patent and Trademark Office, as well.

On Friday, the US Court of Appeals for the Federal Circuit issued an opinion (PDF) about an “ex parte reexam,” filed against Apple’s patent by an anonymous party. The reexam claimed that one of the patents upholding Apple’s big win against Samsung, US Patent No. 7,844,915, never should have been issued at all. The ’915 patent was described in a general way as the “pinch to zoom” patent, but its claims describe a way of distinguishing between one-touch and two-touch operations.

These sorts of ridiculous patent cases serve to illustrate the depth of the problem. Fundamental ideas are being patented and companies that produce and sell a lot of things are being preyed on (at the expense of customers). India, Japan and the US under Lee have basically done the right thing; that’s why they’re constantly under attack by the patent microcosm, whereas a lot of this same microcosm seems perfectly happy with Battistelli turning the EPO into the world's laughing stock.

04.17.17

Patents Roundup: Microsoft, Embargo, Tax Evasion, Surveillance, and Censorship

Posted in America, Antitrust, Microsoft, Patents at 2:03 am by Dr. Roy Schestowitz

All the ‘great’ things that patent maximalism (insatiable appetite for more and more patents) has given society

Big appetite

Summary: An excess of patents and their overutilisation for purposes other than innovation (or dissemination of knowledge) means that society has much to lose, sometimes more than there is to gain

THE FOLLOWING potpourri of news spans a period of about 2 weeks. It hasn’t quite fit into or blended with our usual themes of coverage, but the pertinent developments are noteworthy, at least in brief.

Trolls of Microsoft

In his recent article (behind paywall until recently), entitled “Software patents in the cloud,” LWN’s Jonathan Corbet missed the full picture and failed to recognise that Azure and patents are a toxic mix similar to the Novell deal (2006), as we explained here a dozen times before, e.g. in [1, 2]. The closest he got to it is this part:

While Microsoft claims that it doesn’t normally transfer patents to trolls, this offering could be said to create a sort of moral hazard for the company. If a patent or two were to, somehow, end up in the hands of a troll that started asserting them widely, any customer thinking of leaving Azure would have to weigh the increased risk of attack that would result from such a move.

Microsoft is already passing patents to trolls — those which it can tame/control. We gave many examples. It’s imperative that people familiarise themselves with what Microsoft is up to now. It’s as nefarious as ever.

“Microsoft is already passing patents to trolls — those which it can tame/control.”This other new article totally missed the point of what Microsoft is really doing here. Microsoft is extorting legitimate companies. It’s essentially attacking Linux-powered products using patents, but the article’s headline uses words like “share patents”. Hilarious or outrageous?

Age of Embargo

When you cannot compete, as the saying goes, cheat. Or just embargo the competition. Manging IP will tell you how to do it in this event that it’s organising. To quote: “Speakers on an International Trade Commission panel at Manging IP’s recent US Patent Forum analysed recent notable cases such as February’s Organik Kimya Federal Circuit decision and gave best practices on enforcing an exclusion order” (“exclusion order” is another euphemism among many for embargo/sanction/injunction).

“When you cannot compete, as the saying goes, cheat.”There is a new example of this in the news. It was covered a week ago by American and British media [1, 2] (see background about this case, the Arista case, in older articles of ours).

To quote The Register:

Arista has been cleared by US Customs and Border Protection (CBP) to start shipping modified products to the United States again.

Arista sought the right to do so because of its long-running litigation with Cisco, which believes Arista has pinched its intellectual property.

So the company was threatened with embargo until it hobbled/ruined its own products. Cui bono?

“So the company was threatened with embargo until it hobbled/ruined its own products.”Just envision a UPC-imposed embargo if the EPO gets its way…

Saving Lives

The reforms at the USPTO may already be saving lives. PTAB recently took on a patent from Novartis and here is the latest on this from Patently-O:

This post follows-up on my recent essay on Novartis v. Torrent Pharma. If you recall, that decision by Judge Chen affirmed an IPR trial decision cancelling the claims of the Novartis patent as obvious.

[...]

FDA Approval: Moving back to the facts of Novartis, the patentee argued that its commercial success was based upon “Gilenya being the first commercially-available solid oral multiple sclerosis treatment.” Although that statement is true, the court found the commercial-availability focus misplaced for a non-obviousness argument.

MedCo v Mylan

Recently, Patently-O also covered MedCo v Mylan. Here is the key portion (in our humble assessment): “To spell out the results here. The appellate court reversed the district court’s decision based upon its revised claim construction. The claims require “batches” of the active ingredient that “have a maximum impurity level.” The court construed that term to require a consistent process for making all the batches, and then looked to the specification to note that the patentee intended to use an “efficient mixing” process as that consistent process since that was the type of process described in the specification; And then finally zeroed-in on the the “efficient mixing” process and required that it follow the particulars of “example 5” of the patent since that was the only detailed example given of efficient mixing. With that narrowed claim construction, non infringement was easy.”

Tax Evasion With Patents

Recently, wrote this Twitter user about the “Patent Box Regime”, this article in British media explained how it “enables UK companies to elect for a lower tax rate for profits earned from patented inventions…”

“Another facility for tax evasion, this time disguised as “innovation”?”We wrote a great deal about Patent Boxes, essentially yet another tax-dodging routine which sheds negative light on patents in general. To quote from the article itself: “The patent box regime enables UK companies to elect for a lower tax rate for profits earned from patented inventions and certain other intellectual property rights. The tax rate is being phased in but will be 10% by 1 April 2017.”

Who said there’s no future for the British economy after the Brexit disaster? Another facility for tax evasion, this time disguised as “innovation”? Another way to entice/incentivise businesses to come? If they bother at all…

Wearable Surveillance

“Sometimes patents are “good” in the sense that they discourage companies from doing malicious things (that are patented).”Mitek pursued a software patent on surveillance and it recently got it [1, 2]. So is someone going to be sued next? Well, in a sense we certainly hope so as the practice of such pervasive surveillance needs to be limited if not altogether eliminated. Sometimes patents are “good” in the sense that they discourage companies from doing malicious things (that are patented).

“Should Patent Law Be a First Amendment Issue?”

“The reality is, the public debate about patents is being perturbed; it’s not dominated by people who are affected by patents but by people who made patents (and patents alone) their livelihood.”There is an upcoming debate in Stanford in which Professor Lemley and others will participate. It’s about how software patents harm free speech, according to CAFC. Not only moderate voices will participate in this debate but also software patents proponents (not engineers but law firms) like Robert Sachs‏. “I’ll be speaking next week on Section 101 and the First Amendment,” he wrote. Why not focus on what programmers and engineers have to say? Why are they so often excluded from such debates? Who else might be at this debate? Radicals like Watchtroll? Who now protects a patent bully, as usual?

The reality is, the public debate about patents is being perturbed; it’s not dominated by people who are affected by patents but by people who made patents (and patents alone) their livelihood. It’s like letting arms manufacturers take charge of foreign policy.

04.16.17

Alice Decision and PTAB Are Both Constantly Under Attack From the Patent Microcosm and Its Lobbyists

Posted in America, Patents at 9:18 am by Dr. Roy Schestowitz

Patent practitioners in the US are frogs in hot (if not boiling) water

A frog

Summary: A Supreme Court (SCOTUS) decision against software patents, combined with a chopping block of software patents (whose efficiency is still increasing), is causing trolls and their facilitators (like patent law firms) to resort to dirty tricks and attempt to reshape the system to better suit them, averting irrelevancy

IMAGINE being a patent law firm in the US right now. It’s tough. Litigation figures have sunk, software patents are harder to get, and even if one gets them the courts will typically throw these away. This means that not many people even pursue such patents anymore. We constantly hear new stories about patent trolls that close shop and occasionally about legal firms which are centered around patents closing shop or being absorbed (i.e. their staff finding some new employer).

“We constantly hear new stories about patent trolls that close shop and occasionally about legal firms which are centered around patents closing shop or being absorbed (i.e. their staff finding some new employer).”Things aren’t going to improve for this occupation, which is nothing but a tax on everything (including so-called ‘innovation’). Understandably, the people associated with this pseudo ‘industry’ are fighting back and we need to watch what they are up to as they habitually attempt nefarious things, including an appalling witch-hunt against the head of the US patent office (Director Lee).

We don’t really know when SCOTUS is expected to deliver a determination on Impression v Lexmark (there is no deadline or expected date, but estimates can be made by those intimately familiar with such pertinent cases). What we do know, however, is that the case may have ramifications for software, too. As one site put it the other day, in the words of a legal firm that cited Alice as an example:

The Supreme Court noted several times that Impression was seeking a significant expansion of the existing scope of the exhaustion doctrine. Justice Kennedy asked Pincus why the exhaustion doctrine had not been codified in the 1952 patent statute and whether the failure to codify the doctrine suggested that the court should be “cautious” in “extending” the doctrine’s reach. Justice Alito noted that the “Federal Circuit’s rule on this is 25 years old” and Justice Sotomayor observed that Impression’s position on the question of foreign sales raised “serious issues” and “negative consequences”. Pincus acknowledged that Impression’s position could have such consequences, but observed that the Supreme Court has disrupted the settled expectations of patentees before to “get…the law right”, citing the Alice decision as an example.

Yesterday, in spite of the holiday, Watchtroll advocated getting rid of Alice again, by calling software patents “Computer Related Inventions” and trying to work around Alice. His allies (e.g. IBM’s patent chief and that ilk of patent bullies) recently tried again to undermine PTAB, having lobbied endlessly for negative action. Days ago IBM’s patent chief wrote that it’s “[g]reat that #USPTO will review and consider reform of PTAB #patent proceedings, bad that it took 5 years to happen…”

“They just want to crush Alice, crush PTAB which enforces it efficiently, and basically bring back software patents, which made America Not Great but a hub of patent trolls.”As we noted here the other day, it seems like an effort to appease the software patents lobbyists — something to which other patent radicals are now contributing. “Speakers discussed PTAB issues of interest,” Manging IP wrote the other day, “and other hot topics at Managing IP’s US Patent Forums, includ[ed] estoppel, a reawakening of APA issues at the Federal Circuit, the upcoming en banc rehearing of Wifi One v Broadcom, stay success rates, best strategies for using experts before the Board, and life sciences’ better survival rate in final written decisions”

All of the above is intended to shape PTAB to better suit the patent microcosm rather than the real industry and the public. The USPTO ought not surrender to them. They just want to crush Alice, crush PTAB which enforces it efficiently, and basically bring back software patents, which made America Not Great but a hub of patent trolls.

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