EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

12.09.17

Phones/Mobility (Trillion-Dollar Market) May Have Become Infested and Encumbered by Aggressive, Dying Companies

Posted in America, Patents at 1:37 pm by Dr. Roy Schestowitz

When all that’s left is soon-to-expire patents

Mobile

Summary: The tough reality that new entrants/entrepreneurs are facing now that a few dying giants look to “monetise” their patents rather than create anything

WE recently wrote about how Qualcomm, BlackBerry and Nokia had devolved into something that's akin to patent trolls. Sure, they still have their names on some products, but it’s Apple and Android OEMs that dominate this market. Ericsson and Microsoft, moreover, mostly ‘participate’ in this market in the sense that they pass their patents to patent trolls (Microsoft even passes Nokia‘s patents to trolls), in order for these trolls to target companies which actually produce something.

A few days ago CCIA‘s Josh Landau said that “Qualcomm’s Anti-Competitive Conduct Could Be Exacerbated By Mergers” and it’s about that highly-publicised rumour and bid from last month. To quote Landau, “Qualcomm’s been busy over the past few months. Defending against accusations of anti-competitive conduct from competition authorities in the US and elsewhere around the world, trying to acquire NXP Semiconductors, fending off an acquisition attempt from Broadcom, and—most recently—filing yet another round of new lawsuits to try to force Apple to pay higher-than-FRAND rates for their patents.

“Patent Progress has covered Qualcomm’s anti-competitive conduct in the past [1][2][3][4][5], but the proposed mergers would increase Qualcomm’s ability to suppress competition and provide them with the ability to do so in new markets. That could be a particular problem in growing markets like the Internet of Things and automotive computing.”

We already wrote quite a lot about Qualcomm earlier this year and Florian Müller regularly covers its fight against Apple, which involves FRAND, SEP, and other such euphemisms. Here is his latest article.

IAM continues calling trolling/predation “monetisation” in relation to BlackBerry. [via]

Is this the future of mobile? A bunch of dead companies scattering patents for trolls to just ‘tax’ everything, artificially inflating the prices of everything?

IAM has also just published this blog post about Ericsson, which is fighting TCL in the US (neither company is American). There’s resistance. This is why Ericsson increasingly operates through patent trolls (proxies), which cannot be sued. It’s quite a racket. To quote IAM:

The case was filed by TCL in 2014 when it alleged that Ericsson was in breach of its FRAND obligations following negotiations between the two sides over a licence to the Swedish telco’s standard essential patents (SEPs) for 2G, 3G and 4G mobile technology. It was part of a worldwide dispute between the two companies which has also seen Ericsson bringing several patent infringement lawsuits against TCL in a number of jurisdictions (many of which are now on hold).

In its original complaint TCL revealed that it was seeking: “A judicial accounting on what constitutes a FRAND royalty rate in all respects consistent with Ericsson’s promises to license its patents identified as (or alleged to be) “essential” to the 2G, 3G and 4G standards.” That is why the case has piqued the interest of many in the patent-owning community – a ruling from the court could provide guidance on the royalty rates for one of the two or three leading SEP portfolios in the mobile world, so giving a much wider benchmark against which all SEP licence deals in the space might be negotiated.

Words/acronyms like SEP and FRAND mislead and warp the debate. What we have here is discriminatory, unfair, and unreasonable. A few dead (or dying) companies can’t stop suing everybody else and it’s slowing down the market.

12.07.17

Watchtroll, AIPPI, Bristows and Others Keep Pushing Software Patents Agenda (in Spite of the Ban)

Posted in America, Australia, Europe, Patents at 8:37 am by Dr. Roy Schestowitz

AIPPI

Summary: Pressure groups and front groups of the patent microcosm (e.g. AIPPI) — sometimes even the patent microcosm acting directly — are still trying to make software patents legitimate, usually behind closed doors, e.g. in private events where only the patent microcosm can debate the subject (no software developers allowed)

WE are gratified to say that 3.5 years after Alice the USPTO is a lot more reluctant to grant patents on software and PTAB often invalidates software patents regardless. Failing that, the courts eliminate software patents (the higher the court, the more hostile toward software patents). This means that applicants are encouraged by the patent microcosm to find workarounds; Peter Glaser and William Gvoth at Watchtroll offered tips to that effect yesterday. Sadly for their bamboozled clients (or people who might naively follow their advice), courts would closely scrutinise patents and manage to figure out that Alice still applies (Section 101 exclusions applicable). Using tricks with semantics might help fool one single examiner, but that doesn’t scale well at PTAB (panels) and courts (judges, juries, expert witnesses, attorneys and so on).

“Using tricks with semantics might help fool one single examiner, but that doesn’t scale well at PTAB (panels) and courts (judges, juries, expert witnesses, attorneys and so on).”Basically, software patents are bunk. They’re finished. Sure, the patent microcosm will attempt to claim otherwise (in order to attract business) and also lobby politicians, but so far these people have not been successful. They also know they’re being watched and some of them like to heckle Techrights.

All these patents on blockchain (we wrote several articles about these) are quite likely worthless and merely a bubble, yet we still see articles like this one from yesterday. “Major financial and software institutions (and even some national governments),” it said, “are pouring money into blockchain-related research. This work has generated a crowded landscape of papers, patents and other references…”

“In reality, patents on financial methods (investment/payment/accounting) are some of the most feeble out there.”A lot of these patents come from the old banking industry. It’s trying to guard its territory and fend off disruptive technologies by claiming monopolies on these (in the form of patents). In reality, patents on financial methods (investment/payment/accounting) are some of the most feeble out there. They’re probably the most sensitive/fragile among all software patents, as various sites of the patent microcosm cared to admit.

It’s not just the case in the US by the way. Fisher Adams Kelly Callinans’s Ernest Graf, for example, has just remarked on the changes in Australia, which is formally ending software patents among other things. “The proposal that patent claims identify an invention’s technical features,” Graf wrote, “is part of the Government’s intention to better define what is appropriate “patentable subject matter”.”

Algorithms are not patentable in Australia. They’re very clear about that.

“AIPPI does not represent software developers; in fact, it’s an enemy of software developers. It represents people and firms like Bristows, who merely prey on software developers.”What about Europe? Well, the EPO is creating a massive bubble of patents which we already know to be invalid based on the EPC and Parliament. This bubble is waiting to explode. Two years ago AIPPI expressed concerns about the situation and the rapid deterioration of the EPO. Bristows’ new report from AIPPI Congress suggests that software patents are still a subject of discussion there. Benjamin Henrion sarcastically wrote this morning that what we have here is “Patentability of Computer-Implemented Inventions, written by the patent community for the goodness of software developers…”

It’s more like a coup. To quote Bristows’ staff which has been pushing hard for software patents for many years (in Europe the EPO likes to say “computer-implemented inventions” in order to dodge the term “software patents”):

But as this year’s resolution recited, that application has in fact been scattered, to the point that none of the US, European, Japanese, Chinese, or Korean patent offices even use the same terminology to describe computer-implemented inventions.

After reaffirming the principle that patents should be available for inventions in all fields of technology, and that computer-implemented inventions should not be excluded per se, the key tenets of AIPPI’s resolution were as follows:

(a) The eligibility of a computer-implemented invention for patent protection should not depend on the prior art or any assessment of novelty or inventive step. In other words, subject matter eligibility should assessed independently of these other requirements.

(b) A claim to a computer-implemented invention should pass the eligibility requirement if it defines an invention in at least one field of technology. Whether a claim does so should be assessed on a claim by claim basis, in relation to each claim as a whole.

The references to a “field of technology” adopt the language of Article 27 of TRIPS and Article 52 of the European Patent Convention. A mooted statement to the effect that a claim should be considered to define an invention in a field of technology only if it makes a novel and inventive contribution to that field of technology was debated, but not adopted in the final resolution. The resolution says nothing further about what it means, in AIPPI’s view, to “define an invention in a field of technology”.

AIPPI does not represent software developers; in fact, it’s an enemy of software developers. It represents people and firms like Bristows, who merely prey on software developers.

12.06.17

The Electronic Frontier Foundation (EFF) is Calling for Greater Transparency at USPTO and US Patent Courts

Posted in America, Courtroom, EFF, Patents at 6:18 am by Dr. Roy Schestowitz

As independence is not enough when there’s no visibility

Judicial independence
Reference: Judicial accountability and independence (UK)

Summary: Digital rights groups such as the Electronic Frontier Foundation still insist that it is difficult to tackle patents, challenges (e.g. at PTAB) and legal actions given the current tools and publicly available data

THE prevalence of information (Open Access and open data) in conjunction with transparency is essential for justice. It needs to be seen to be assured or verified by independent outsiders. The USPTO wouldn’t rank too badly for open data, but there’s plenty of room for improvement still.

“A lot of people now rely on Google for access to such information (problematic as it demonstrates an element akin to privatisation).”Apple fan sites which keep abreast of Apple’s latest granted patents certainly manage to find out what was approved (this one is from yesterday), but when one only sees the finished ‘product’ it leaves limited room for challenge/opposition. The USPTO has an extensive database and easy-to-search data about granted patents, but little else. A lot of people now rely on Google for access to such information (problematic as it demonstrates an element akin to privatisation).

“As we’ve said since last year, the Board enjoys a 80% approval/reaffirmation rate from the Federal Circuit, so there’s no rift.”What about data other than granted patents? Well, some sites have come into existence to help track dockets and thus patent cases, soon to be used by the EFF, CCIA and so on. The Federal Circuit (CAFC) is hard to observe except when decisions are published (worse than the Supreme Court, SCOTUS, in that regard) and with PTAB dodged using tribal immunity (Saint Regis Mohawk Tribe/Allergan) things get extremely dodgy. There are satellite/proxy entities all around the world, designed purely to complicate and therefore whitewash what many have dubbed a “scam” (hard to trace reassignments back to the source, much like money laundering).

Yesterday, this long article by Vera Ranieri (EFF) spoke about how secrecy (or lack of access to information) impacts cases in the Eastern District of Texas and beyond. To quote:

In a promising step toward transparency, the Eastern District of Texas (the court that sees many of the nation’s patent cases) recently announced an amendment to its Local Rules that would require parties to file redacted versions of documents that contain confidential information. Previously, parties would file whole briefs under seal, without any public version being provided, even if only one word or line in the brief was claimed to be confidential. One of the few ways the public could protest against this improper sealing was to attempt to intervene in cases so as to require the parties and the courts to justify the sealing. But members of the public can’t possibly intervene to unseal in every case. This rule change is a step toward greater transparency.

EFF has, in recent years, worked to push back against oversealing, especially in patent cases where improper sealing is practically routine. We successfully intervened in several cases in order to provide greater transparency to the public.

[...]

EFF has also been pushing for greater transparency in the high profile patent litigation between Allergan (a branded pharmaceutical company) and generic companies who wish to make a lower cost version of the drug Restasis. The litigation took on new interest when Allergan announced it had “sold” its patents to the Saint Regis Mohawk Tribe in an attempt to shield the patents from scrutiny at the Patent Office.

[...]

In both the district court case and at the Patent Office, it is clear that parties are often sealing much more information than the law allows. It is only when challenged do they agree to reveal what should have been public in the first place. While we’re glad there has been greater transparency in the cases mentioned above, it should not take EFF (or anyone else’s) intervention before the courts and parties make public what should have been public all along.

Contrariwise, looking at the patent maximalists at Patently-O, they are taking advantage of access to PTAB/Federal Circuit proceedings to cherry-pick cases and often present the PTAB as rife with disputes, controversy, even scandals. Yesterday the blog wrote about three “PTAB decisions [which] seem inconsistent, but the differences can be explained by the fact that each IPR focused on different prior art references (or combinations thereof). Note here that the patentee loses (claims are cancelled) if a claim is found invalid in any one of multiple IPR proceedings. On appeal, the Federal Circuit consolidated the cases and has ruled against the patentee — affirming the Iron Dome and Dish cancellations, but reversing the Board’s nonobviousness decision from Hulu.”

As we’ve said since last year, the Board enjoys a 80% approval/reaffirmation rate from the Federal Circuit, so there’s no rift. Compare that to the sheer disagreement between the Federal Circuit and the Supreme Court, which as far as patents go is extraordinary. The Supreme Court overturned pretty much every single decision from the Federal Circuit.

12.05.17

PTAB, Which Invalidates Software Patents, is Still Under Attack Using Lies From Sites Like Patently-O

Posted in America, Patents at 5:18 am by Dr. Roy Schestowitz

Trolly-O Patently-O

Summary: In an effort to put an end to inter partes reviews (IPRs), which basically reassess the potency/legitimacy of granted US patents, the patent microcosm promotes the canard of patents as “rights” and “property”

THE PTAB has helped put an end to most software patents in the US. In fact, the USPTO now makes it a lot harder to pursue software patents and already-granted US patents get invalidated every day. This is a good thing. Except for the patent microcosm…

Found via this tweet was yesterday’s article about a fashionable new trick for dodging Section 101 and somehow patenting software, essentially by tying computer code to “a car” or something along those lines. “To answer that,” the article said, “and other questions about Autonomous Drive Systems (ADS), we looked at both acquisitions and patents to get a better grasp on where the industry is headed.”

Well, it is certainly trying to make a patent pool out of the mere act of driving, which has over a century of prior ‘art’ (people who actually drive). I already developed some software intended to automate driving and there’s nothing in it which wasn’t already attempted a long time ago. Computer vision is just a branch of computer science and/or mathematics. There’s no room for patents there. Any patents in that area would just stifle/slow down programmers.

The patent microcosm is trying hard to kill PTAB, for the very fact is that PTAB helps end software patents. It even invalidates patents which were granted before Alice.

Several different strategies have been used in an effort to weaken if not altogether eliminate PTAB. One such strategy was misuse of tribal immunity in the US. Josh Landau from CCIA has just revisited the subject. Last night he wrote:

At the House Judiciary Committee’s IP Subcommittee hearing on sovereign immunity, Chairman Issa had a simple request for Phil Johnson, one of the witnesses—to, for the record, “look at the various off-ramp possibilities” for PTAB proceedings. An off-ramp is a way for a patent owner to take their patent and amend it in front of a patent examiner, instead of defending the validity of their claims in an inter partes review (IPR).

Given the factual errors I found in Mr. Johnson’s testimony, I decided to take Chairman Issa up on his request and look at off-ramps in PTAB proceedings. Not a new off-ramp—the ones that already exist and are already being used.

Legislation appears to be on its way to void such tribal immunity and a Federal judge has already ruled against it. But don’t expect the anti-PTAB lobby to rest. Sites like Watchtroll and IAM continue to perpetually attack PTAB and so does Patently-O, which as recently as yesterday (and days beforehand) promoted anti-PTAB papers to influence SCOTUS. It’s not surprising; this anti-PTAB blogger used to attack PTAB almost every day and this latest paper that he links to comes from some dodgy company whose Web site does not even list any services and was generated in a rush using GoDaddy tools. Ron Katznelson’s abstract says:

This paper shows that the Framers empowering Congress to act by “securing for limited Times to … Inventors the exclusive Right to their … Discoveries” understood that the exclusive patent right is not “granted” but is a preexistent right emanating from the inventor – not from Congress. This exclusive right is only secured by statute, as part of the patent bargain in exchange for the inventor’s public disclosure of the invention. Therefore the right adjudicated in administrative validity review of issued patents is a “private right.” It is shown that the notion of post-issuance administrative “error correction” is fiction, as it overlooks the irreversible and uncorrectable exchange of rights upon patent issuance. It is concluded that only Article III courts can extinguish such private rights and that arguments advanced by proponents of post-issuance administrative patent revocation are therefore deficient in supporting the constitutionality of such proceedings.

The abstract alone mentions the word “rights” 5 times, but patents are not rights. That’s just that old and tired canard from Patently-O.

In other news, yesterday came this update regarding Axon/TASER. It’s about the “‘950 Patent [which] is asserted against WatchGuard in a patent infringement lawsuit pending in the U.S. District Court in Kansas.”

This press release [1, 2] says that the USPTO rejected a request to review the patent. Quoting the press release:

Digital Ally, Inc. (NASDAQ: DGLY) today announced that the United States Patent Office has rejected the request of Enforcement Video, LLC (d/b/a WatchGuard Video) to institute an inter partes review (“IPR”) on U.S. Patent No. 9,325,950 (“the ‘950 Patent”). The ‘950 Patent is asserted against WatchGuard in a patent infringement lawsuit pending in the U.S. District Court in Kansas. The lawsuit also involves U.S. Patent Nos. 8,781,292 (“the ‘292 Patent”) and 9,253,452 (“the ‘452 Patent”), the same two patents asserted against Axon Enterprise, Inc. (“Axon,” formerly known as TASER International, Inc.). Digital’s lawsuit against WatchGuard claims infringement of these three patents by WatchGuard’s VISTA WiFi® body camera and its 4RE® Digital HD Panoramic In-Car System. Digital is seeking both damages and an injunction preventing the sale of these products.

This comes to (once again) demonstrate that PTAB does not blindly invalidate everything. It helps assure patent quality, not take away the “rights” [sic] of so-called ‘inventors’.

12.03.17

Patents Roundup: Federal Circuit, Domino’s Pizza, Roku, and W3C Patent Policy

Posted in America, Patents at 5:11 pm by Dr. Roy Schestowitz

Hello

Summary: A potpourri of coverage regarding patents, assembled over the past week in an effort to highlight trends and developments

THE USPTO has reluctantly become a battleground between people who care about science and people who just care about litigation. Don’t fall for the recent media scam that frames it as a rift between “tech” and “pharma”. It’s nothing like that at all.

Recently, the Federal Circuit reaffirmed that patents are not just a corporate welfare system. As Patently-O put it last week:

Normally, patent infringement liability stems from an infringer using all-elements of a claimed invention. However, a quirky provision found in 35 U.S.C. 271(f)(1) creates liability for exporting some components of a patented invention. Particularly, the statute requires export/supply of “a substantial portion of the components.” In its 2017 Life Tech decision, the Supreme Court interpreted this provision — holding that: export of a single component of a multicomponent invention could not meet the “substantial portion” threshold requirement. Namely, one component cannot be a “substantial portion of the components.”

On remand, the Federal Circuit has issued a new opinion in the case — this time affirming the district court judgment that patentee (Promega) failed to prove infringement under 271(f)(1) as required by the Supreme Court decision.

One problem with this analysis though – according to Promega is that – for some of the infringing kits, “it was undisputed at trial that LifeTech supplied more than one component. . . Taq polymerase and primer pairs.” In a footnote the Federal Circuit dismissed this argument – finding that Promega had not proven particular damages regarding these 2-component exports and thus had no right to collect any damages for the infringement.

Words like “damages” are misleading. They’re a misnomer. It’s like calling patents “assets”, “property” and so on. Words like “owned” or “stolen” are also frequently misused. How about “Intellectual Property” or “Intellectual Property Rights” (IPR)? Complete nonsense. Proprietary software for patent maximalists (only available to ‘customers’ of Apple and Microsoft) has just been described as “Much-Needed Tools for Inventors to Protect Intellectual Property” and this page is so filled/saturated with buzzwords and misnomers that it’s ludicrous. Yet this is the type of stuff that has shown up in the news this past week…

“Words like “damages” are misleading. They’re a misnomer. It’s like calling patents “assets”, “property” and so on. Words like “owned” or “stolen” are also frequently misused.”What else did we see? Watch this patent trial update from CBS and pay attention to what’s at stake. We did not read the individual patents, but it certainly sounds to like software patents which should be null and void. To quote a portion:

The Federal Court of Australia has postponed a patent infringement trial between Domino’s Pizza Enterprises and Precision Tracking, with the presiding judge agreeing that in the interest of fairness, additional time should be provided to Domino’s to prepare for the trial.

Precision, a small Chippendale, Sydney-based technology company claiming to be the creator of the Domino’s GPS driver tracking system, initiated legal proceedings for alleged infringement of innovation patents filed in October 2014 and August 2015.

Precision, based on its Web site, is definitely not a patent troll. There is an actual product, but Australia does not permit patents on software and this might become an issue/liability to Precision. We are not against patents as long as they are not covering abstract ideas (like algorithms/mathematics). There are plenty of things we do not bother scrutinising.

“SecureLogix Corp.,” according to this, “filed a patent for a biometric authentication system for mobile and real-time communication.” This might be a software patent, but closer scrutiny is needed (of the patent and respective product). There are new examples from Apple, from MyDx, from Flex Logix [1, 2] and from Medicrea which certainly seem strictly connected to physical and inseparable devices. So these will likely be fine. Compare these to this press release [1, 2, 3] which is itself admitting “processing technology and software patents” (in a country where these are not allowed). “Element Data, Inc., a decision support software platform that harnesses artificial intelligence and machine learning has acquired the assets and six patents of Auguri Corporation,” it says. How many of these patents are pure software and thus invalid (or to be unvalidated if tested in court)? These patents are software patents and thus worthless.

In other news, Nexenta issued a press release [1, 2] in which it boasted 50 patents and PhishMe [1, 2] said that litigation recently resulted in a settlement. The case in the “District of Delaware will be dismissed, and the proceedings pending at the United States Patent and Trademark Office will be terminated,” it said. They got a licence agreement.

Speaking of licence agreements, Roku and TiVo look as though both — not just TiVo — will resort to patent aggression. Based on this post from last week:

Last month, Roku Inc. debuted on the NASDAQ, with its shares skyrocketing 67% from its IPO price at $14 per share. Over the last few weeks, Roku’s stock has continued its ascent, most recently closing at just shy of $40 per share. The company operates a television streaming platform, and allows users to personalize content, and also monetizes its service through ad-supported channels. With the streaming video space becoming increasingly competitive from dominant players such as as Netflix, Apple TV, Google Chromecast, and Amazon’s Prime Video and its Fire TV Stick, Roku faces stiff competition in terms of user acquisition. Envision IP analyzed Roku’s US patent portfolio to understand the extent of its intellectual property focus, as well as how the company is innovating its platform to differentiate itself from the competition.

[...]

That being said, Roku recently inked a multi-year patent agreement with TiVo, where Roku obtained a license to thousands of Rovi and TiVo patents. While the specific terms of the deal have not been disclosed, in the event that Roku has been granted defensive assertion rights, it may not need to rely heavily on third-party patent acquisitions to bolster its defensive patent portfolio. To that point, we did not identify any instances where Roku has asserted any of its patents, either offensively or defensively (via a counter-suit in response to being sued by a third-party), as of the date of this research.

As a reminder, Rovi is connected to Intellectual Ventures, the world’s biggest patent troll.

Sadly, a lot of decent things are becoming patents-saddled. The other day the W3C released this statement:

In accordance with the W3C Patent Policy, W3C has launched a Web Payments Working Group Patent Advisory Group (PAG) in response to disclosures related to specifications of the Web Payments Working Group; see the PAG charter. W3C launches a PAG to resolve issues in the event a patent has been disclosed that may be essential, but is not available under the W3C Royalty-Free licensing requirements. Public comments regarding these disclosures may be sent to public-wpwg-pag@w3.org (public archive). Learn more about Patent Advisory Groups.

We have been writing about the W3C Patent Policy for nearly a decade. They have not yet screwed up on patents like they did on DRM and other controversial matters. We hope it remains this way because any patents pertaining to the Web would definitely be software patents.

At Patently-O, Daniel H. Brean Tries — and Fails — to Make a Case for Software Patents

Posted in America, Patents at 3:11 pm by Dr. Roy Schestowitz

Photo source: Daniel’s official homepage

Daniel H. BreanSummary: The patent reform-hostile and software patents-friendly Patently-O has a new essay/article whose core premise is weak if not altogether flawed

THE BLOG known as Patently-O is influential. It’s also quite popular among the patent microcosm, so ignoring it altogether would not be wise. But Patently-O is not objective; it just tries to appear so, albeit the people who run it have vested interests.

The other day this blog (re)published some essay from Daniel H. Brean, who uses TRIPS (in its own right an injustice) to do gymnastics in logic and assert that Alice ought to be left behind. Brean’s core argument, to put it bluntly, is totally nonsensical considering the fact that the vast majority of the world (bar China perhaps) has already banned software patents and thus the US should follow suit. If anything, Alice puts it in closer alignment or cohesion with TRIPS. From Brean’s essay:

The fact that at least some computer-implemented business methods are patent eligible in the U.S. itself suggests that the field is technological, even if many methods in the field ultimately fall short on inventive merit. Eligibility at the threshold is a long way from patentability, and what Alice would view as mere computerization of a well-known business process will rarely be inventive enough to be patented as a novel, nonobvious process. But arranging and employing computers and software for practical business purposes is nonetheless a technological endeavor that brings such methods under TRIPS’ protections.

As the United States considers more changes to the availability and enjoyment of patent rights, it should end this discrimination in favor of technology-neutral practices or reforms.[xv] Otherwise, it sets a precedent of singling out disfavored technologies for disadvantageous treatment on a country-by-country basis, which could undermine the international patent law harmony that TRIPS is intended to facilitate.

What a laughable argument. Putting aside the apparent misunderstanding of how software works, it wrongly assumes that the entire world must follow the US rather than the US following everybody else (more than 200 countries). But being anti-Alice, this essay perfectly suited Dennis Crouch’s agenda. He’ll never ever speak against software patents and the last time he published a piece sceptical of software patents it was about half a decade ago (and merely a rare guest). The other day he shared this graph about basis of rejection of applications. It suggests that “obviousness” is surging:

The USPTO released a new data set of office action rejections, including an action-by-action breakdown of the basis for each rejection and the prior art relied upon. The first chart below shows the frequency that obviousness and anticipation rejections are found in office actions. The shift since 2009 is quite interesting — obviousness rejections are up significantly following KSR while anticipation rejections are way down.

A lot of applications are nowadays being rejected based on Section 101 (inspired by Alice), but the graph does not show this. Either way, another week passes with another pro-software patents piece from Patently-O. Do not believe for a second that this blog (or Crouch for that matter) is objective. We already said that six years ago.

12.02.17

In Oil States Case, Consensus on All Sides is That PTAB Will Endure

Posted in America, Courtroom, Patents at 3:40 am by Dr. Roy Schestowitz

Oil refinery

Summary: The Oil States v Greene’s Energy case, which the US Supreme Court deals with at the moment, looks likely to leave the Patent Trial and Appeal Board stronger than ever (enshrined in law and defended by the highest court)

SEVERAL days ago we noted that the Patent Trial and Appeal Board (PTAB) would be fine, at least judging by the way hearings were going. The hearings started 5 days ago. We soon saw that even foes of PTAB were willing to admit that PTAB would be fine. The main question is, will the decision be unanimous or not?

A few days ago CCIA correctly noted that the Justices would likely defend PTAB unless something shocking happens. It also quoted or alluded to the words of Justice Gorsuch and Justice Kagan:

The Oil States case focuses on whether it’s constitutional for the Patent and Trademark Office (PTO) to review the validity of a patent after they issue it—whether the PTO can go back and double-check its own work, in other words.

Generally, the Justices (other than Justice Gorsuch, who made his position clear—but didn’t see much support for it from other Justices) seem comfortable with the PTO doing this. While a few expressed concerns about specific procedural aspects of IPR, there was little real concern about whether it was appropriate to have this kind of double-check of an agency’s own work.

Justice Gorsuch appears to feel that IPR is inappropriate, but the other Justices appear inclined to uphold it as constitutional even as they continue to signal that they want to monitor the procedure to make sure it’s being conducted fairly.

IPR seems likely to remain available as a fast, accurate, and efficient procedure for reviewing weak patents.

[...]

In other words, at least based on this comment, Justice Kagan is suggesting that sovereign immunity doesn’t apply to IPRs.

As one might expect, the patent microcosm’s sites (behind paywall in this case) also cover this case regarding PTAB’s future, but they only quote lawyers, i.e. the patent microcosm. Here is what one such site wrote: “US Supreme Court Justices seemed divided during arguments for Oil States v Greene’s Energy and SAS Institute v Matal. Patent lawyers have been busy making predictions about how the court will rule in the two cases, which could dramatically change how the Patent Trial and Appeal Board operates…”

Well, now we know that neither case it going to change anything substantial. But the patent microcosm is trying to create uncertainty; it wants to assure clients that they should continue pursuing lots of patents, even in an environment which is increasingly sceptical towards these.

11.30.17

The Patent Trolls’ Lobby is Already Pushing for the USPTO to Help Make Patent Trolls “Great Again”

Posted in America, Patents at 12:04 pm by Dr. Roy Schestowitz

Related: Watchtroll, IAM, and the Plot to Overthrow Patent Reformer at the USPTO in Order to Make Litigation (and Trolls) Great Again

Make Patents Great Again

Summary: Sites such as Watchtroll and IAM already try very hard to influence and manipulate the patent system into becoming more permissive (for patent trolls) while emboldened by the idea that a “Patent Evangelist” (as IP Watch put it) is being put in charge of the US patent office (USPTO)

THE year 2017 has only one month left. Throughout the year, on many occasions, IAM heavily lobbied (usually by shaming) the Indian patent system into introducing software patents. IAM is basically a lobbying organ and we know who’s funding it. It is sometimes publicly disclosed (sometimes reluctantly or accidentally). Earlier this week it received some more money from the patent ‘industry’ in India (it typically runs pro-software patents pieces for this ‘industry’, which harms India’s reputable software industry).

Watchtroll great againWhat we would rather turn our attention to, however, is this IAM event with the USPTO‘s Director Matal in it. IAM, the patent trolls’ lobby, together with Watchtroll, helped promote a misguided politician who wants to help trolls. We are quite surprised that Matal agreed to attend after this lobby had attacked Michelle Lee, his close colleague. Watchtroll and IAM are agitator sites that provoke patent defendants and politicians/officials who pursue science, patent sanity, and patent justice. They’re backed and/or funded by truly nefarious actors and they know it. EPO management is among these actors.

Days ago we wrote about Iancu, the next Director of the USPTO, which Trump is making a swamp of. IP Watch wrote about it yesterday. To quote:

President Trump’s nominee to be the next director of the United States Patent and Trademark Office (USPTO), Andrei Iancu, could receive Senate committee approval by the holidays if things line up just right. If appointed, he told a nomination hearing today that he would “evangelize” the IP system and make possible reform of the patent review process a high priority.

Now watch how the patent trolls’ lobby, IAM, responds. It is already putting pressure on Iancu, including these debunked points regarding software patents:

1) Does Congress need to act to clear up the uncertainty around 101?

Thanks to a succession of decisions from the Supreme Court a cloud of uncertainty continues to hang over just what is patent eligible in the US. That is particularly true in medical diagnostics, but has also affected parts of the tech industry. There is a growing sense that Congress needs to take action to bring greater clarity to section 101 of the US patent statute — the part that focuses on patent eligible subject matter — but just six years after the America Invents Act, does Iancu agree that more legislation is needed?

The list goes on. They know that Iancu is the “swamp” (patent system governed by the patent ‘industry’) and they have just added: “A quick overall summary: Iancu seems opposed to further anti-troll legislation, at least for now; recognises there are serious issues with eligibility following SCOTUS cases; acknowledges widespread disquiet with IPR regime; understands inventors need incentives & protections.”

If Trump’s definition of “swamp” is people who don’t give absolutely everything to billionaires and oligarchs, then that makes perfect sense. He’s now doing that to the USPTO too. Conservative patent extremists are loving it. They don’t have anything to do with science and technology anyway.

« Previous Page« Previous entries « Previous Page · Next Page » Next entries »Next Page »

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channels: Come and chat with us in real time

New to This Site? Here Are Some Introductory Resources

No

Mono

ODF

Samba logo






We support

End software patents

GPLv3

GNU project

BLAG

EFF bloggers

Comcast is Blocktastic? SavetheInternet.com



Recent Posts