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04.13.18

Samsung is the ‘New IBM’, Sans the Trolling With Patents

Posted in America, Asia, IBM, Patents, Samsung at 5:18 pm by Dr. Roy Schestowitz

IBM has itself become nothing but a trolls' feeder and patent bully

IBM floppy

Summary: The ‘relic’ company, IBM, loses its patent leadership (as measured using some yardstick) to Samsung, a company which is relatively calm when it comes to patent activity (unless/only when sued, as happens a lot nowadays)

SIZE matters. Especially when it comes to patents. Samsung is a very large company that employs a huge number of people and is viewed as a national asset. It’s to Korea what IBM used to be for the US. Samsung has already been ‘king’ of patents at the EPO and now IBM see itself dethroned in its own country. Reports and analyses have recently suggested that Samsung silently became ‘king’ of patents at the USPTO. We’ll come to the cited criteria in a moment (it depends on what’s being measured).

This sort of ‘triumph’ of Samsung could not be celebrated today; it was clouded by late(r) Friday news from a Texan court. Yes, patent trolls carry on suing Samsung with dubious patents and hours ago we saw reports about that [1, 2, 3]. It’s about a biometric patent or patents. And yes, it’s in Texas, so PACid, the plaintiff, is quite possibly a troll if not some major parasite. It wants almost $3,000,000,000 (no typo!) and it went after Samsung because it’s a leading OEM with many sales of Android devices. Speaking of Texas, in the Eastern District of Texas strikes again a Catalan university, exploiting the district in a get-rich-fast-type patent scam. Universities as patent trolls? No, IAM would not use the “T” word. Here is how its editor put it some hours ago:

Another tale of patent litigation with its roots in convergence is now being played out in the Eastern District of Texas. What makes this one slightly different to other stories is that its main protagonist is a small, Spanish company that was spun out of a Barcelona university back in the late 1990s. Earlier this week, antenna R&D business Fractus filed suits in Marshall against AT&T, Verizon, T-Mobile and Sprint, accusing them of infringing its patents relating to cellular base station antenna technologies.

Anyway, we digress. The point of this detour may be to show that Texas is where trolls go not for justice and companies go to defend themselves from injustice. Things are different in California, where Judge Lucy Koh does some good things these days (invaliding abstract patents) and is now being recalled by a longtime Apple v Samsung watcher. As he has just put it, “One month prior to yet another Apple v. Samsung trial, old and new disagreements on design patents surface” (headline). He ought to know this stuff, having covered it for nearly 8 years. Here’s the latest:

On May 14, Apple and Samsung will square off in court again. It’s going to be the third trial in their first California case alone. What makes it interesting is that it will involve a design patent damages determination (damages in this case amounting to a disgorgement of infringer’s profits) following a Supreme Court ruling in the same case. The exact amount of money that will change hands between Apple and Samsung won’t impact the parties’ positions in the smartphone market. However, it will be a signal to other design patent holders, including patent trolls. Should Apple be awarded a huge amount that Samsung could ultimately afford but the equivalent of which would potentially put many other companies out of business, design patents would be used in aggressive, extortionate ways.

Last week, Judge Lucy Koh ruled on the parties’ Daubert motions. Daubert motions and rulings are hard to figure out from the outside unless they’re just about numbers (such as damages claims that a court does or does not permit) because one would need to know the related expert reports to really understand the context. What became clear to me from Judge Koh’s ruling, however, is that she gave Apple various opportunities beyond the test proposed by the United States government in 2016 to argue that the relevant article of manufacture for a disgorgement of design patent infringer’s profits in this case is an entire phone, not just a casing. While Judge Koh adopted the broad lines of the DoJ’s proposed test, her Daubert order explicitly and intentionally declines to apply parts of what the DoJ had argued in its amicus curiae brief to the Supreme Court.

As we pointed out here many times before, Samsung tends to be more passive and defensive with patents. So we no longer view Samsung as much of a danger (if any).

Regarding Samsung’s stance in the US, the CCIA has just pointed out that “[w]hile IBM is the largest single corporation recipient each year, Samsung actually receives more patents than IBM when you include the various Samsung subsidiaries.”

Companies are filing for more patents every year—IBM received almost 1,000 more patents in 2017 than they did in 2016, an increase of 12% year-on-year. But, despite the fact that more patents are being filed for and granted every year, you still hear critics of patent reform claim that reforms have rendered patents worthless.

Samsung, IBM, Canon, Microsoft, Intel—these are all sophisticated users of the intellectual property system. They aren’t throwing money at something worthless; if they’re filing for patents, it’s because there’s value in doing so. And judging from all sorts of relevant statistics, as Patent Progress has previously covered, innovation is alive and well in the United States, including when it comes to patent filings.

A lot of IBM’s patents are worthless software patents.

Here’s a case — or IPR rather — against IBM patents (ZitoVault LLC v International Business Machines Corporation et al), based on prior art. The Docket Report put it explained:

Following two inter partes review proceedings, the court granted plaintiff’s motion for summary judgment that IPR estoppel under 35 U.S.C. 315(e)(2) barred defendants from asserting invalidity of previously instituted claims based on prior art that was known by defendants when they joined a third-party’s IPR, but which defendant’s failed to assert in that IPR.

There are many more patents like these which IBM loses nowadays. This barely happens to Samsung.

As IAM put it a short time ago, “Samsung’s patent portfolio is almost certainly the biggest in the world, it may also be the best.”

There’s a corresponding blog post and more behind a paywall. IAM, not IBM, said that “Samsung has the world’s largest active patent portfolio and among the highest quality ones, too, exclusive IAM-commissioned research reveals.”

From the summary:

In the IAM/ktMINE US Patent 100, published in issue 89 of IAM, we revealed that Samsung owns by far the largest US patent portfolio. Now, new research conducted for IAM shows that the Korean conglomerate not only has the largest portfolio in the world, but also one of the strongest. Below we provide a detailed analysis of Samsung’s patent holdings, including an examination of how the company has developed its assets and the most salient patent-related stories it has been involved in over the last five years. Patent portfolio breakdown With almost 250,000 granted patents worldwide….

We don’t typically wish to cite IAM, but in order to understand some things we keep track even of its spam from Japan (latest ad from Shobayashi International Patent & Trademark Office, or Satoshi Watanabe trying to sell services).

SCMP, which is now connected to the Chinese government through its new owner, wrote a few days ago about Huawei v Samsung. This shows how China uses patents to help the CPC-connected (the nation’s Communist regime) Huawei block/stop competition from Korea. We already wrote about these legal disputes many times before (LG has been driven out of China using such lawsuits) and here’s the latest:

A Beijing court specialising in intellectual property (IP) rights disputes has dismissed requests from Samsung Electronics seeking invalidation of Huawei Technologies’ certain patent rights on smartphones after an earlier local Chinese court decision banned sales of certain phone models from the South Korean brand.

The Beijing IP Court confirmed that Huawei’s patent rights on smartphones involved in the disputes with Samsung were valid and it denied any procedural violation in the previous patent review process, which had dismissed Samsung’s requests on the grounds of they lacked a factual and legal basis, according to a report by China Intellectual Property News on Sunday – a newspaper supervised by the State Intellectual Property Office (SIPO).

Well, SIPO and its aggressive/short-sighted approach will be the subject of our next post.

David Barcelou May or May Not be a Patent Troll, But He is Certainly a SLAPPing Bully and Watchtroll is Fine With It

Posted in America, EFF, Law, Patents at 4:25 pm by Dr. Roy Schestowitz

“People disagree with me. I just ignore them.” ~Linus Torvalds

Summary: Like a thin-skinned person/entity (which many in the patent microcosm are), David Barcelou and Automated Transactions (“ATL”) SLAPP their critics and surprisingly enough it’s Watchtroll, who has been threatened by WIPO, coming to the bully’s rescue (double standards)

THE USPTO‘s decades of poor patent grants are a liability. It’s a toxic legacy which empowered patent trolls. As Daniel Nazer (EFF) put it about an hour ago: “Examiners spend an average of ~18 hours per app, roughly half on prior art. It’s no great insult to patent examiners that litigators with huge budgets and expert help find better art. Of course they do.”

The CCIA recently wrote something similar.

“The EFF’s Daniel Nazer (in his capacity as EFF staff) revealed that Automated Transactions (“ATL”) is also a SLAPPing troll, not just a patent troll, like those who send us threats by post.”Daniel Nazer isn’t really the subject of this issue, but he happens to be the main carrier of a message. It’s actually about David Barcelou. The EFF’s Daniel Nazer (in his capacity as EFF staff) revealed that Automated Transactions (“ATL”) is also a SLAPPing troll, not just a patent troll, like those who send us threats by post. Calling patent trolls what they are is perfectly lawful, especially in the US, but being the bullies that they are, they don’t care about the law; they attempt to twist everything and they just try to cause damage to their victims (of legal harassment). Posted about a day ago at the EFF’s Web site: [via]

A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a “patent troll.” The court ruled [PDF] that the phrase “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities – or “trolls” – are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.

The case began back in December 2016 when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL’s litigation in a way that was defamatory.

This started a sort of ‘chain letter’ between troll apologists (like Watchtroll) and Nazer, who wrote: “This defamation case received breathless coverage from @ipwatchdog that didn’t even mention the glaring First Amendment issues raised by the complaint. [] I thought this was pretty striking because IP Watchdog has itself been the recipient of some bullying defamation threats – I figured the publication might cover defamation with at least an awareness of the free speech issues at stake. [] Do you think it was an oversight for a legal blog to write about that complaint without even mentioning the First Amendment?”

That’s rather interesting and people took note of it; and on it goes: “Weird that the Court just dismissed the Complaint on First Amendment grounds then. The judge must not understand the First Amendment as well as you do. [] That’s right, Gene. Just as I’m sure your statement that the 1A doesn’t protect falsity was made after deep consideration of the nuances US v Alvarez – why would I dare challenge such a scholar of the First Amendment? [] They’re equivalent in the important sense that the 1A rightly protects both (I even liked your Gurry post, not that that’s relevant, I read it before it got taken down). Here’s the opinion by the way. A very routine application of 1A and defamation law…”

“If it’s actually a “watchdog”, then we know whose…”Well, patent maximalists typically protect patent trolls irrespective of anything, including the Rule of Law. Watchtroll is much of the same, which is why we call it that (for nearly a decade now). We rarely make up names for sites unless they’re really bad. Watchtroll is probably the only in this category because let’s face it, who is it a watchdog for if not trolls?

If it’s actually a “watchdog”, then we know whose…

Watchtroll then responded by insinuating that Nazer works for billionaires (the one Watchtroll habitually insults). He said: “Surprise! Surprise! @danielnazer Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents, called me out on Twitter, but now is afraid to a real live debate. I’ve challenged him multiple times, willing to debate on his turf too. Funny how folks like him only talk big.”

“Maybe we can ship Watchtroll 200 years back into the past where he can handwash his clothes and talk about how Web pages (as in Standard Generalized Markup Language) are “computer programs”.”Watchtroll does not debate; I attempted to debate him, but he blocked me and ran away after he had lost the debate. A few hours ago Watchtroll (Gene Quinn) wrote about this and then proceeded to inane “MAGA”-type nonsense, under the headline “America Needs an Eighteenth-Century Patent System”.

Yes, he actually typed that into the headline! Maybe we can ship Watchtroll 200 years back into the past where he can handwash his clothes and talk about how Web pages (as in Standard Generalized Markup Language) are “computer programs”. He actually said this repeatedly. He’s a clueless bully who just throws a fit when losing an argument. He’s nontechnical. Debating him on technical matters is like debating Creationists about science.

04.12.18

The USPTO Has a Nepotism and Lobbying Problem That Jeopardises the Rationality of US Patent Law

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

The Office is now being run, almost literally, by the patent microcosm (Andrei Iancu)

Washington sights

Summary: The influence games of Washington are spilling over to the US patent office and poisoning/harming its ability to conduct professional operations without corporate influence (from either side, both corporations and law firms)

THE USPTO has a big — and growing — problem in its hands. It’s nowhere as severe as EPO scandals, but it could potentially develop over time. There is almost one single issue we habitually criticise the USPTO for and it’s to do with former officials, several of whom seem to have become lobbyists, typically for the patent microcosm. Lobbying is quite an epidemic in Washington (DC); it’s renowned if not notorious for it. There are no effective restrictions on such behaviour/operations because it’s “big business” in DC.

“There are no effective restrictions on such behaviour/operations because it’s “big business” in DC.”Lobbyist David Kappos keeps meddling, this time in a largely Microsoft-sponsored (Kappos’ sponsor also) think tank, Fordham IP. Why does the USPTO not intervene? Do they even understand how terrible this looks? He came from IBM and now he lobbies again for IBM among others like Microsoft. He uses his connections (which he acquired during his time as USPTO Director) to steer agenda. Watch last night’s article (titled “US intellectual property in the age of Trump”) which says:

President Trump has already made his mark by appointing a USPTO director and taking a stand against China. Panellists [sic] at the Fordham IP Conference, including David Kappos and James Pooley, assessed the impact Trump could have on IP

Pooley isn’t too bad (we wrote about him in the past), but what on Earth does Kappos do there? Panelist?

“He might be ready to do some damage (to patent reform).”Thankfully, for a number of years Kappos was replaced by Michelle Lee, who helped clean up the mess. But she didn’t last long. Now there’s a new boss (after a temporary one, Matal) and the mask fell off some time earlier this week. He might be ready to do some damage (to patent reform).

Baker Donelson’s Micheline Kelly Johnson, in a sponsored self-promotional piece (published at IAM today), comments on an older talk by Iancu in which he mentioned Section 101. At the time he said nothing too threatening to patent reform. Earlier this week, however, his tune changed somewhat. He adapted to a rather extreme audience. Michael Loney, who is based in New York and edits a patent maximalists’ site, wrote this: “Andrei Iancu has declared “we must change the dialogue surrounding patents”, and revealed the USPTO is looking to simplify the eligibility determination for its examiners and assessing PTAB issues such as how proceedings are instituted [...] USPTO director Andrei Iancu yesterday gave a strident speech at the US Chamber of Commerce Patent Policy Conference, acknowledging criticism of the patent system and stressing the need to improve the accuracy of patent grants.”

“He came from a firm that had worked for Trump.”Dennis Crouch wrote about it some hours ago. “USPTO Director Andrei Iancu gave the keynote address at the April 11, 2018 Patent Policy Conference hosted by the U.S. Chamber of Commerce,” he said. Well, that’s what happens when the Trump-appointed ‘head of patents’ takes guidance from lobbyists and extremists of the U.S. Chamber of Commerce and AIPLA. He came from a firm that had worked for Trump.

Watchtroll (Gene Quinn) wrote about this with excitement. The headline is preceded by “BREAKING:” (yes, all CAPS!). A USPTO Director went to think tanks’ events lately (U.S. Chamber of Commerce and AIPLA, soon IAM too), so Watchtroll is now quote-mining for him. He’s hoping this will help derail the patent reform. “We are at an inflection point with respect to the patent system itself. As a nation, we cannot continue down the same path if we want to maintain our global economic leadership. And we will not continue down the same path,” Iancu is quoted as saying. There’s a full transcript.

“The government-to-lobbying (or vice versa) pipeline is a highly disturbing one, but it’s not uniquely American.”It’s worth noting that Watchtroll has also just quoted the lobbyist-turned-official Makan Delrahim, trying to twist some words for the maximalists’ agenda. “While I believe in a very restrained approach to antitrust enforcement when it comes to the legitimate exploitation of valid IP rights, the Division will not hesitate to enforce against anticompetitive collusive conduct,” Delrahim is quoted as saying.

The government-to-lobbying (or vice versa) pipeline is a highly disturbing one, but it’s not uniquely American. The USPTO might want to do something about that, but currently its boss may be part of the problem; his firm had worked for Trump before Trump nominated him for this position.

Patent Trolls in the United States Show the Importance of Stopping Software Patents (Trolls’ Favourite) Worldwide

Posted in America, Apple, Europe, Patents at 8:15 am by Dr. Roy Schestowitz

In Europe also…

French troll

Summary: The abundance of entities that exist for no purpose other than to initiate lawsuits is a contagious threat to real innovation (or science and technology being practiced); a new jury verdict (record-breaking $500,000,000) is a reminder of this

The patent troll VirnetX, wielding a patent granted by the USPTO, uses it to make money out of extortion-type activities. This has gone on for about a decade. Apple has just lost again [1, 2] (2 more links at the bottom) and financial media put it in perspective for the small firm (troll) and the far larger one:

The jury ruled that Apple’s FaceTime, VPN on Demand and iMessage features infringed four of VirnetX’s patents, according to a Bloomberg News report. Damages were based upon sales of more than 400 million Apple devices, according to Bloomberg. Apple shares were down 0.1% after hours.

If Apple must pay $500 million, that is still a lot of money (even by Apple’s standards). We’d like to repeat what we said last year about this case: Join us, Apple, in fighting against software patents. It’ll pay off. Stop pursuing software patents. It’s just bad policy and a ruinous practice. That helps patent trolls.

Speaking of patent trolls, France (home of Battistelli and birthplace of his successor, Campinos) seems to be in love with some. We have, over the years, named several. France Brevets is actually a patent troll (as hard as it may be to accept, especially because it’s government-supported) and IAM wrote about it yesterday (albeit behind paywall):

In February we broke the news that France Brevets had sold a package of patents to Chinese ride sharing business Didi Chuxing. In total the sovereign patent fund (SPF) disposed of around 140 worldwide assets in a deal that underlines the fund’s recent evolution. As one of the original SPFs, France Brevets blazed a trail as it looked to generate a healthy return from locally produced IP while being backed by the French government.

Yes, the French government, whose former top officials make headlines for corruption these days, actively supports patent trolls. France is also the foremost proponent of UPC (since the old days of Michel Barnier). It’s a dream scenario for trolls.

Related/contextual items from the news:

  1. Apple Owes VirnetX $502M for Patent Infringements

    If this feels familiar, it’s because we’ve been here before, and Apple isn’t VirnetX’s only target. The company has been in litigation with both Microsoft and Cisco. Microsoft settled and paid the company a total of $223 million. It now looks as though Apple may end up paying more than double that for the legal action to end. However, there is one final ray of hope for Apple.

    While VirnetX won, the Patent Trial and Appeal Board (PTAB) may end up having the final say in this outcome. That’s because PTAB believes VirnetX’s patents are invalid even for cases currently in progress. No final decision has been made on this matter, though, and therefore the Federal Circuit refused to delay Apple’s case.

  2. Apple Must Pay $502.6 Million to VirnetX, Federal Jury Rules

    VirnetX Holding Corp. won $502.6 million against Apple Inc. after a federal jury in Texas said the maker of iPhones was infringing patents for secure communications, the latest twist in a dispute now in its eighth year.

    [...]

    For VirnetX, the jury verdict in its favor could be a short-lived victory. The Patent Trial and Appeal Board has said the [software] patents are invalid, in cases that are currently before the U.S. Court of Appeals for the Federal Circuit in Washington.

04.11.18

USPTO Will Have a Crisis of Legitimacy If Its Officials Work as Lobbyists and Cooperate With Villainous Think Tanks

Posted in America, Patents at 8:52 am by Dr. Roy Schestowitz

“[Y]ou’re creating a new 20-year monopoly for no good reason.”

David Kappos, former Director of the USPTO

Summary: The latest examples of Andrei Iancu and David Kappos (current and former USPTO Directors, respectively) found ‘in bed’ with the patent microcosm (like the disgraced Judge Rader and unlike Michelle Lee, whom the patent microcosm constantly smeared to eventually oust)

THE EPO scandals are many. Too many to count. There’s danger, however, that similar scandals will spread to the US (we wrote about some appointments by nepotism recently, including the CIO and the new chief, whose firm used to work for Donald Trump).

Here’s the latest gossip from the Office. It’s less than a day old. It’s about Pam Isom, who is said to have hired her nephew by marriage:

According to these “Highlights” (highlighted by Managing IP on Tuesday), the USPTO‘s Director spoke at a Microsoft-sponsored propaganda event/think tank, Fordham IP. He is in bed with bad people. He will soon speak at an event of IAM, the patent trolls’ lobby. A day earlier we saw him mentioned in this programme. It seems rather inappropriate for the USPTO to allow its Director to be lobbied quite so blatantly by AIPLA and the U.S. Chamber of Commerce considering what both stand for. But here they go:

The program, which will focus on the impact of U.S. patent policy on the domestic innovation ecosystem, will include a keynote address by U.S. Patent and Trademark Office Director Andrei Iancu and a fireside chat with U.S. Circuit Judge Kimberly Moore.

Notice who’s attending.

Meanwhile, David Kappos rears his ugly head again, this time in his capacity as a rogue lobbyist with connections. How much are these former USPTO Directors paid to lobby for software patents? Do they charge per day/hour? Or do they just rally corporate sponsors to give them lots of money? Kappos has a front group with corporate sponsors now.

What about “Activist” Judge Michel? Is he not really retired? He keeps popping up everywhere, hypocritically accusing SCOTUS Justices (higher level than he ever was in his career) of being “activists”. As this new tweet quotes him (with a photo of him sitting next to Kappos): “Judge Michel: Activist Supreme Court judges are dictating national economic policy through their interpretation of the Patent Act. If I were Congress I wouldn’t put up with it!”

This comes from an event that Watchtroll too wrote about on Tuesday, under the headline “It is already too late, but we still have time” (time for what? Bashing judges?)

Paul Michel and David Kappos were there alongside the patent microcosm, which is pretty revealing. There was also someone there for “activist” politician Christopher Coons, who is trying to derail patent reform. To quote:

“It is surprising that we continue to make the same mistakes that we have made over the last several hundred years,” said Judge O’Malley as she opened the panel, which included Chief Judge Paul Michel (CAFC, ret.), David Kappos (former Director of the USPTO), venture capitalist Gary Lauder, Managing Director of Lauder Partners, and Jamie Simpson, USPTO Detailee to the Senate Judiciary Committee for Senate Christopher Coons.

Does the USPTO even care to realise how bad it looks when former officials join the lobbying industry and the current Director gives talks at events of think tanks? Even those that front for patent trolls? Michelle Lee almost never did such foolish things, yet the patent microcosm tried to frame her as the “scandalous” one.

More SCOTUS Patent Cases on Their Way, But Nothing That Will Change 35 U.S.C. § 101/Alice

Posted in America, Courtroom, Patents at 3:55 am by Dr. Roy Schestowitz

American pride

Summary: In spite of the continued assessment of patent law at the US Supreme Court (SCOTUS), things won’t change in favour of the software patents lobby any time soon (if ever)

THE (arguably) most anticipated patent decision from SCOTUS is (probably) Oil States. Just under a year ago we saw yet more favourable (to patent reform) decisions from SCOTUS. Expect more of the same later this month or next month.

Another possible case (to reach SCOTUS) is a high-profile case regarding patents, but it not about patent scope (Alice has already settled much of that) or litigation venue scope (TC Heartland dealt with it last summer/spring). Earlier this week Patently-O wrote about it:

Helsinn’s petition for certiorari received strong support this week from a bevy of ten briefs amici. The missing element now is a call from the Supreme Court for the views of the Solicitor General (CVSG) and a resulting brief from the U.S. Government supporting the petition.

The Patent Act bars the patenting of inventions that were “on sale” prior to to the invention’s filing date. The question on appeal here is whether the AIA limited “on sale” to only include publicly available information — or instead do secret and confidential business deals also count as invalidating prior art (if ever discovered).

This case isn’t of much interest to us, but still, it can help show where SCOTUS stands (or sits) on patents. Writing about this other case which isn't of much interest to us, SCOTUS Blog has just said:

On the first morning of the Supreme Court’s April session next week, the justices will return to problems of extraterritorial patent infringement, hearing argument in WesternGeco v Ion Geophysical Corp. For the third time in recent years, the court will consider Section 271 of the Patent Act. The statute was adopted in response to the court’s 1972 holding in Deepsouth Packing v Laitram Corp. that the Patent Act does not provide a remedy for overseas patent infringement. Deepsouth was an early example of a presumption against extraterritoriality, which has come to loom quite large in the Supreme Court’s recent jurisprudence. Traditionally, under that canon of construction, a statute applies only to conduct within the United States unless Congress explicitly indicates a contrary intent.

It doesn’t matter what the outcome may be, this won’t impact § 101/Alice in any way whatsoever. We hope nothing will change § 101 and as we’ll show in our next post, the software patents lobby now attacks SCOTUS itself. Bullies will be bullies…

Michael Cottler and David Zimmer (Goodwin Procter) are meanwhile leaning on Berkheimer v HP Inc. (CAFC decision) in hope of weakening § 101. Like the software patents lobbying blog, “Bilski Blog”, Watchtroll now latches onto two words, “well-known”, in order to try to weaken the potency of 35 U.S.C. § 101 and prop up software patents. From their post:

In Exergen Corporation v. Kaz USA, No. 16-2315 (March 8, 2018), the Federal Circuit, in a split non-precedential opinion, affirmed a holding that Exergen’s claims directed to methods and apparatuses for detecting core body temperature were directed to patentable subject matter under 35 U.S.C. § 101. The Federal Circuit’s decision, like many of its recent § 101 decisions, raises many interesting issues, and we briefly address two of them.

[...]

And what is the difference between a technique that is merely “known” (e.g., a technique disclosed in that German thesis) and a technique that is well-known and conventional?

Aside from the fact that it’s a non-precedential opinion, it barely affects anything at all when it comes to § 101 decisions. These people just scrape the bottom of the barrel, knowing that SCOTUS is fine with § 101 and is about to defend PTAB in Oil States.

Yesterday we saw Patently-O writing about another non-precedential opinion, this one regarding Funai. It’s a new CAFC case where the “plaintiff’s four asserted patents to be invalid for claiming ineligible subject matter under 35 U.S.C. 101. On appeal, the Federal Circuit has affirmed.”

With more background:

In a sweeping judgment,the N.D. Ill. district court dismissed Maxon’s infringement case — finding the claims of the plaintiff’s four asserted patents to be invalid for claiming ineligible subject matter under 35 U.S.C. 101. On appeal, the Federal Circuit has affirmed.

The patents here are all part of the same family — all directed to a seeming business method of providing an “electronic means of increasing user control over subscription entertainment content.” U.S. Patent Nos. 8,989,160; 7,489,671; 7,486,649; and 7,171,194. Although the bulk of the patents were issued pre-Alice (2014), the ‘160 was issued later in 2015. During prosecution, the examiner did reject the claims originally under Section 101 — that was overcome however by amending the specification to limit “computer-readable medium” to only non-transitory storage. Of course, that strict line-drawing does not work for the flexible eligibility analysis applied in court.

What is nice to see here is that despite the plaintiff’s effort to make up for lack of quality using quantity (several patents, not just one), 35 U.S.C. § 101 thwarted them all. Unlike, say, what happened at the start of this year with Finjan.

04.09.18

PTAB and the Federal Circuit (CAFC) Still Rejecting and Removing Dubious Patents

Posted in America, Law, Patents at 1:16 am by Dr. Roy Schestowitz

Any attempts to obstruct the process have thus far been a spectacular failure

Staple remover

Summary: US patents continue to lose their ‘teeth’ if the Patent Trial and Appeal Board (PTAB) deems/declares them invalid; a higher court continues to affirm PTAB’s decisions in the great majority of cases

THE Patent Trial and Appeal Board (PTAB) of the USPTO is scaring the patent microcosm, which is desperate to put an end to it. Several hours ago a site of the patent microcosm said that PTAB and then CAFC confirmed US “Patent No. 8,018,049 [to be] invalid as anticipated/obvious.”

Here’s the outline:

In a split decision, the Federal Circuit has affirmed a PTAB Inter Partes Reexamination decision against a patentee – finding the claims of Knowles Patent No. 8,018,049 invalid as anticipated/obvious.

The patent here covers a cool microphone on a chip with a special inlaid housing for shielding a transducer the transducer when in use in a hearing aid. The patent claims the microchip “package,” and the construction of that term forms the crux of the appeal. Note here that this is the same debate previously discussed in the Federal Circuit’s March 1 decision in Knowles Electronics v. Cirrus Logic (Fed. Cir. 2018) [Knowles Case]

Here, the PTAB construed “package” as “a structure consisting of a semiconductor device, a first-level interconnect system, a wiring structure, a second-level interconnection platform, and an enclosure that protects the system and provides the mechanical platform for the sublevel.”

CAFC was also mentioned a few days ago in relation to another case:

A jury verdict of nearly $1 million was vacated, creating new legal definitions around DVI’s patent infringement claims.

[...]

Last week, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit threw out a 2016 federal district court jury verdict that had found grid technology provider Alstom guilty of infringing on DVI’s patented technology, on the grounds of an “absence of substantial evidence to support the jury verdict.”

If vacated, this patent infringement case will end up enriching nobody but lawyers. This has become very common.

Speaking of lawyers/attorneys, watch them using the word “kill” again (in relation to patents). “Fourteen Patent Infringement Cases Against FitBit, Nike, etc. Dismissed Because Patents Killed by Alice/101,” this one attorney says. Another attorney then said: “If you’re D Ct Judge, and you don’t like 9 infringement cases involving four patents, what do you do? VOILA, bogus-Alice logic to rescue! dlbjbjzgnk95t.cloudfront.net/1029000/102946… note sleight of hand p.16, where improvement in computer technology gets morphed into “improvement in manual process”…”

There’s also this PTAB rant: “IBM patent rejection again: PTAB thinks compacting data for more efficient storage is just an “abstract idea”…”

These attorneys are connected to (and write for) patent trolls.

Some hours ago Jim Lovsin, writing in a site of the patent microcosm, spoke about the first derivation trial at PTAB — a subject we covered about a week ago. Lovsin offers some background to it:

Derivation proceedings address originality of claimed subject matter — who invented it. The petitioner must have a pending patent application and file the petition within one year of the grant of the patent containing the challenged claim or one year of the publication of the earlier application containing that claim, whichever is earlier.

In the proceeding, the petitioner must show that (1) the respondent derived the invention from the petitioner, and (2) the respondent filed an application without authorization.

Derivation is not a new concept, but rather was an issue that could be raised in the Office’s oldest (and now defunct) contested proceeding, the interference. Interference proceedings addressed priority of claimed subject matter — who first invented it. While the AIA shift to a first-to-file regime did away with interference proceedings for patents with more recent effective filing dates, the Board explained in its first decision denying institution of a derivation trial that it will apply derivation case law as it developed in the interference context to derivation proceedings. Catapult Innovations Pty Ltd. v. adidas AG, DER2014-00002, Paper 19 (PTAB July 18, 2014).

Writing about post-grant procedures, Lionel M Lavenue, R Benjamin Cassady and Nicholas J Doyle say that “[a]n order from the Middle District of Florida may mean that petitioners have to foot the bill for America Invents Act proceedings, even if the prevailing party has a colourable argument for finding the case exceptional,” which basically means that lawyers still receive a lot of money and leave it for the accused and claimant to decide who foots the bill. What’s significant about it though is that, depending on who foots the bill, a lawsuit or a challenge might not be filed at all.

Lawyers ironically profit also from bad patents being challenged. IPRs at PTAB, for example, may mean that lawyers at both sides of a dispute step in for advice if not representation (the latter is more expensive).

Sometimes the IPRs tackle bad actors. Unified Patents, for example, is nowadays disarming a patent troll, Fall Line Patents, with help from PTAB IPRs. Here’s an update from four days ago:

On April 5, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 9,454,748 owned and asserted by Fall Line Patents, LLC, a well-known NPE.

“NPE” is just a euphemism for patent trolls. Many firms with “LLC” turn out to be trolls and here’s a new example, published on the same date (as the above) by TechDirt:

Patent Troll Sues Spotify, SoundCloud And Deezer Over Patent On A ‘Music Organizer And Entertainment Center’

Another day, another story of another patent troll. This one is about MOAEC Technologies LLC, a “patent licensing” company that exists solely around four related patents for a “music organizer and entertainment center.” Last month, MOAEC sued Spotify, SoundCloud and Deezer over these patents. It’s interesting that the lawsuit came just a few weeks before Spotify’s IPO, as we’ve seen a bunch of companies sued for patent infringement right before their IPOs — but it didn’t prevent Spotify’s IPO from happening.

Watchtroll has just released another attack on PTAB (with grammatical errors in the headline). Seems as though they just want to fling lots of crap at PTAB; quality does not matter.

Another new piece about CAFC and PTAB came from Mark St. Amour, who alluded to a case regarding fibre optics:

In affirming the PTAB decision, the Federal Circuit first looked at whether the initial disclosure of a “fibre optics bundle” provided disclosure of a broader “light guide.” The Federal Circuit noted that the parties did not dispute that a “fibre optic bundle” is a type of “light guide,” and that various types of light guides were well known in the art. Next, the Federal Circuit looked to whether a “first channel” was sufficiently disclosed, and found that a person of ordinary skill would understand the “light channel” or “viewing channel,” labeled as element 6 in the ‘184 PCT drawings, as providing such disclosure. Finally, the Federal Circuit looked to whether there was sufficient written description of a “light guide permanently affixed therein.” (emphasis added). To resolve this issue, the Federal Circuit looked to the ‘184 PCT which showed that “viewing channel 6 is bookended by lens 13 and viewing tube 7 is evidence that these components form a unitary part that is not removable.”

[...]

Hologic unsuccessfully argued that the PTAB improperly relied on the prior art to provide disclosure of claim elements. The Federal Circuit disagreed, stating that the PTAB simply considered what the specification reasonably conveys to the skilled artisan who has knowledge of the prior art. To put it another way, the prior art was used by the PTAB to aid in determining what a person of ordinal skill in the art would understand from the ‘184 PCT if that person also had knowledge of such prior art.

This is one among the many cases where CAFC agrees with PTAB and winds up invaliding challenged patents. Thankfully, however, over the past week the opposition to PTAB has been weak. We’re still waiting for Oil States to hopefully reaffirm the role of IPRs. As for the anti-PTAB legislation? The “STRONGER” nonsense? Not a word about it since well before Easter, so it’s probably dead again.

Hype Waves Exploited by the Software Patents Lobby: Blockchain, Autonomous Driving, Artificial Intelligence, Big Data, and Wearables

Posted in America, Law, Patents at 12:34 am by Dr. Roy Schestowitz

Beach textures

Summary: In an effort to tackle (or work around) 35 U.S.C. § 101 the patent microcosm embraces and overuses a bunch of popular, fashionable, sometimes-revived trends, which nonetheless represent software-implemented concepts and are often not novel at all (except the buzzwords)

THE MOMENT that a buzzword (or a hype wave) gets used to describe a patent (or an invention, whether real or perceived) you just know that someone is trying to bypass 35 U.S.C. § 101 (or a similar section) at the USPTO. It has become so common. Companies disguise software patents as all sorts of things, including “cloud”, “IoT”, and “AI”.

“Companies disguise software patents as all sorts of things, including “cloud”, “IoT”, and “AI”.”There’s an attempt to find new methods to patent software. Over the weekend when Patent Docs did its usual event/broadcast promotions (e.g. [1, 2, 3, 4]) it also revealed this upcoming ‘webinar’ set up by a villainous corporate front group, Intellectual Property Owners Association (IPO), funded by IBM and others like it in order to push software patents and try to change the law. This ‘webinar’ is lobbying on § 101 and it covers “patent eligibility grounds on the basis that there are factual disputes that underlie the determination of patent eligibility under § 101.”

“Over the past week we have seen quite a few buzzwords being used as surrogates for software patents.”These software patents are worthless. But if they’re not challenged at PTAB or in a court, then they might still be useful for coercion purposes.

Over the past week we have seen quite a few buzzwords being used as surrogates for software patents. Blockchain patents, for example, are software patents and are therefore worthless, but don’t think that patent lawyers will allow this hype wave to go to waste. Fritz Wetzel/Ratner Prestia wrote an article titled “Blockchain Technology—Patent Eligible Subject Matter or Just a Business Model?”

It’s introduced as a “software-based technology”:

Briefly, blockchain is a software-based technology that allows the transfer of data in certain divided blocks which are all encrypted. The blocks need to be confirmed from different participants in a network and will be stored decentralized. Hence, it is or should not be possible to manipulate the transferred and stored data because if only one block is manipulated, the system would immediately recognize this manipulation and can prevent any claim or request on this data. Not only can this technology be used to transfer funds between market participants, it can also perform the transfer of any kind of data such as music files, literature, smart license contracts and even sensitive confidential data from governments.

Another so-called ‘software-based technology’ is HEVC, which is full of patents that IAM is promoting this month, along with so-called “autonomous vehicles” patents. It has become another one of those hype waves — to the point where two days ago Watchtroll published “Ford Developing Autonomous Systems for Police Cars, Other Emergency Vehicle” (software again).

These patent maximalists/lawyers are, as usual, attempting to patent software under the guise of “Autonomous Driving”. Here’s the new article titled “The Driverless Race Is On: Patenting Autonomous Driving” (we already wrote some articles on this topic).

“This development is, for instance, focused on platforms, software, navigation and infrastructure,” says the article. It boils down to software which does things inside the car.

There are other renewed hype waves in the headline. Samuel Davis, for example, wrote for IAM about “AI” under the heading “Beyond the hype” (ironically), then alluding to “AI for intellectual property” (alluding to patent management, for example, using computer programs).

“There are other renewed hype waves in the headline.”The patent maximalists, i.e. people who profit from patents, are jumping on revived hype waves here. How about “House Bill Would Establish National Security Commission on Artificial Intelligence”? Patent Docs published that a few days ago and as we noted here last month, Jones Day (Carl A. Kukkonen III, Douglas H. Pearson Ph.D. and Ognian V. Shentov) came up with a slant on “AI” and “BD” hype (they even gave an acronym to “Big Data”). They’re reposting it:

AI and BD inventions can be effectively and concurrently protected via patents, trade secrets, and copyrights, as well as by means of contractual arrangements. Notwithstanding such variety of protection mechanisms, patents remain an essential part of an overall IP strategy for innovation-oriented companies. Given uncertainties over patent eligibility and validity, careful attention must be heeded to optimally capture the value of AI and BD innovations for both defensive and offensive purposes.

“Wearable” is another one of those hype waves. Todd C. Basile and David J. Dykeman decided that a “Patent Strategy is Crucial for Wearable Innovations,” but all we have here is a couple of patent attorneys trying to sell patents on just about anything, this time in the form of a bogus article which is actually lobbying/marketing:

As wearable innovations continue to enhance and shape healthcare and the way we live, innovators must focus on protecting their inventions. By building a strategic patent portfolio that has worldwide patent protection, innovators can thrive in the growing wearables market.

As we recently saw in a district court in California, even patents on so-called ‘wearables’ are nowadays deemed abstract.

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