How many patents are enough? A billion? To Battistelli it’s all about money (and self-glorifying photo ops), not innovation!
Reference/related: Affaire Bygmalion (Battistelli's political party when he was Mayor)
Summary: The warning signs coming both from the East and from the West, demonstrating the pitfalls of a policy too permissive on patents and thus on litigation
THERE IS A lot to be said today about the EPO and the UPC. The cautionary tale here is what happened in the US and what is still happening/developing in China. Both places fostered patent maximalism, resulting in patent trolling.
The patent microcosm, as expected and as we last noted yesterday, obsesses over whatever can weaken PTAB and strengthen bad patents like software patents (abstract concepts, not devices or chemicals etc.) so it latches onto Unwired Planet v Google right now.
“Who benefits from this? The patent meta-industry, obviously. At whose expense? Everybody else’s expense!”Over at the EPO-friendly MIP, Mr. Loney publishes article that says “The Federal Circuit’s Unwired Planet v Google decision will lead to more rigorous review of covered business method review petitions by the Patent Trial and Appeal Board and discourage filing” (which is a not good thing). Another new article, this one by Professor Dennis Crouch, demonstrates that the patent troll of Ericsson is doing a lot of damage to patent reform in the US. We already mentioned this the other day, with about two dozen articles from patent law firms that want to eliminate PTAB and return to patent maximalism (and restraint minimalism). These trolls of Ericsson already begin to leave their mark or make an impact in Europe as well, emboldened by the EPO and filing lawsuits in London.
The motivation here is clear to see: less barriers to and more patents in a lot more disciplines. Who benefits from this? The patent meta-industry, obviously. At whose expense? Everybody else’s expense!
Over at the EPO-friendly IAM, some time this morning it was claimed that the hotbed of patent trolls, China, is setting the ground for patent chaos in all of Asia. It was separately noted that a Microsoft patent extortion proxy, Intellectual Ventures, will be embracing yet another proxy (it reportedly has thousands of them!) to operate in China. Here is the key part:
All the available evidence points to Intellectual High-Tech KFT being a vehicle controlled by Intellectual Ventures (IV). It has made numerous acquisitions of patents over the last few years – the vast majority from Japanese corporates – and more than a fair few of these have ended up with III Holdings 3 LLC, an entity associated with the third iteration of IV’s Invention Investment Fund.
It is possible that there is an IV connection to the CPT transaction too. The Taiwanese company’s assignment to HZW is its first transfer of patents to a third party since July 2011 – when it assigned a substantial number of assets to none other than IV. At the time, IV’s man in Taipei was Don Merino, who later joined Transpacific IP and is now running his own IP strategy consultancy on the island. It wouldn’t be a surprise if some of the same people were involved in getting this deal done.
Great! More patent trolls.
Remember that the number of patents is not a measure of innovation, nor is it a reliable measure of wealth of countries (unless patents are expensive to pursue and cheap to come up with). In China and in the US the quality of patents is truly appalling at times. Software patents, for instance, are not innovative at all; they are a dime a dozen and some are so trivial that it’s jaw-dropping.
“Remember that the number of patents is not a measure of innovation, nor is it a reliable measure of wealth of countries (unless patents are expensive to pursue and cheap to come up with).”Earlier this week Benjamin Henrion said that “counting the number of patents is not measuring innovation. And when you start mixing a variable with another one, more meaningless.”
He alluded to something from WEF (Switzerland with its patent hype) that said: “This map tells you everything you need to know about #innovation in Europe” (Switzerland likes such maps because they’re convenient propaganda for Switzerland).
Henrion and I both know it’s nonsense. A lot of patent examiners know that too. As for patent law firms, they probably lie to themselves. As the saying goes, they’re paid not to understand (or it’s hard to understand something which you’re paid to not even wish to understand).
“When you sell patents for a living,” I told him, “then patents are the only thing that counts.
He rightly asked “again measuring innovation with patents?”
“Don’t take Europe down the path of patent maximalism or we shall all suffer for decades to come (until erroneously-granted patents expire).”Maybe the number of patent lawsuits too will become a false measure of innovation. If so, then the US has a serious innovation deficit because, as even Professor Dennis Crouch’s site put it this week, patent lawsuit are shown sharply. To quote the relation to AIA (patent reform in the US half a decade ago): “Prior to the America Invents Act of 2011, the courts allowed plaintiffs to join multiple parties as defendants in a single lawsuit – even when the only relationship between the parties was that they all were alleged to infringe the asserted patent. The AIA blocked those multi-party actions in its non-joinder provision. The result was that the number of lawsuits filed per year rose post-AIA even though the number of accused infringers actually dropped. This also means that anyone looking at trends in infringement actions needs to carefully analyze the data if their time span extends across the AIA enactment date.”
The US is cleaning up its act by axing a lot of software patents and it shows. What we learn from this is that the worse the quality of patents becomes, the more litigation takes places (and thus more money goes into the pockets of patent law firms).
Don’t take Europe down the path of patent maximalism or we shall all suffer for decades to come (until erroneously-granted patents expire). █
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Summary: A week’s roundup of patent news from the United States, where there’s a mixture of good news, bad news, good reporting, and misleading (or selective) reporting
TAKING a break from European scandals and looking at the USPTO for a moment, there’s some good news and some bad news. This post is an outline of recent coverage and some interpretation of recent developments.
IoT and Other Buzzwords Targeted by Trolls
Using buzzwords for patent thickets, MIP published “Defining the IP landscape in IoT” several days ago. In simple terms , IoT is just a device with a TCP/IP stack, where IP stands for Internet Protocol, not Intellectual Property (quite a buzzword in its own right).
Another new article, published by a site that piggybacks the buzzword “IoT” (as meaningless as the buzzword “smart”), is titled “IoT Time: Don’t Feed the Trolls” and it speaks of a real and growing problem. Patent trolls, including some of Microsoft’s, are trying to tax — using patents — every device out there, even routers. One of Microsoft’s patent trolls that does this is still fighting for software patents. Here is what the article said:
The White House estimates that 62 percent of all patent-related lawsuits in 2014-2015 came from these trolls. And although it is a problem in the hardware space, it’s a much bigger one for software folks.
The New York Times in 2012 reported that the number of software patents has gone through the roof in the last few years, and software is hard for courts to nail down in terms of what, specifically, is the proprietary bit of code. Much of the code looks like any other code, even to experts, which leads to after-the-fact lawsuits asking for huge settlements years later.
Improved Patent Quality Means Less Litigation
The US patent system gives us many reasons for optimism, Trump’s presidency aside (we wrote about this last night). With better quality control in recent years the number of lawsuits sank, especially frivolous lawsuits from trolls. Here is how IAM put it:
It has been clear for most of 2016 that the number of new patent litigation cases was going to be down this year in the US. But it is now becoming ever more likely that the fall will be dramatic. According to the latest estimate from Lex Machina, the total amount of suits for 2016 is expected to be 4,586; that’s down from 5,822 last year, which was the second busiest on record.
This data from Lex Machina was mentioned elsewhere as well, though not in publications that are busy glorifying patents and attempting to inflate their value (no emphasis needed on such articles).
PTAB, Inter Partes Reviews (IPRs) and the Courts
David from Patently-O, a rather scholarly site, said that “courts continue to split on whether IPRs (reeexam, reissue, etc.) are “prosecution.””
In our view, a good analogy or parallel here is the EPO’s Boards of Appeal. Here is what David wrote:
I’ve written a lot about so-called prosecution bars (buy some of the books for Christmas gifts here! They make great stocking stuffers for toddlers), and this case is in many ways not that unusual but it does raise one interesting issue and serves as a reminder to both check your side and the other’s for folks who may need to be subjected to a bar, and its scope.
The opinion is not online that I can find but is Emerson Electric Co. v. Sipco, LLC, 2016 WL 6833741 (N.D. Cal. Case No.16-mc-80164-DMR, Nov. 21, 2016). A third party, Linear Technologies Corporation (“LTC”) was served with a subpoena that included a request for its source code. LTC sought to ensure that one of the party’s experts, Ameroth, would not have access to it because he was participating in IPRs. LTC had not instituted the IPRs and was not a party to the litigation.
Everyone agreed to amend to include a prosecution bar in the protective order (apparently it did not, before the subpoena, contain one), but the dispute was over whether Ameroth could view LTC’s source code and still participate in the IPR.
Suffice to say, we’re huge fans of IPRs and of PTAB in general. It helps ensure greater and more reliable control over the quality of patents. It’s a bit like an independent (sort of) regulator of examiners. Its very existence is enough to compel examiners to think twice before they grant a patent in error. PTAB is almost like a watchdog, i.e. the very opposite of Watchtroll who just keeps attacking PTAB. It was sorely needed for over a decade and now it’s under never-ending attacks from the patent microcosm (profiting from the absence of such oversight mechanism).
Here is a very recent article titled “Federal Circuit PTAB Appeal Statistics – November 2016″. It’s from a site of patent law firms and it says:
Through November 1, 2016, the Federal Circuit decided 128 PTAB appeals from IPRs and CBMs. The Federal Circuit affirmed the PTAB on every issue in 101 (78.91%) of the cases, and reversed or vacated the PTAB on every issue in 9 (7.03%) of the cases. A mixed outcome on appeal, where at least one issue was affirmed and at least one issue was vacated or reversed, occurred in 11 (8.59%) of the cases.
78.91% affirmation rate is very high and it’s similar to the rate of CAFC invalidations of software patents.
MIP also wrote about PTAB last week (Mr. Loney writes a lot on the subject from New York). “Though the AIA and PTAB have made strides in curtailing the practices of the non-practicing “trolls”,” it said, “patents can still be monetized through these same methods by operational and non-operational companies alike.”
Watch what PTAB does to the patent troll of Ericsson, based on this report from MIP: “In Unwired Planet v Google, the Federal Circuit has declared: “The Board’s application of the ‘incidental to’ and ‘complementary to’ language from the PTO policy statement instead of the statutory definition renders superfluous the limits Congress placed on the definition of a CBM patent””
A lot of the press coverage last week actually focused on this one case. They have been pretty much ignoring all the cases which did not suit them and instead cherry-pick this one case. We’ll deal with that separately later.
PTAB made many people realise that passing the examiners’ ‘quality’ control at the USPTO is not enough, or as IAM put it: “The extent to which patent value and validity are correlated in the current market was called into question last week at Unified Patents’ annual meeting in Silicon Valley.” To quote IAM’s headline (it’s a blog post), “To understand a patent’s true value these days you have to factor in the PTAB” (which habitually shoots down patents even after a grant and without the patents being tested in court).
Remember how companies used to issue press releases to brag about being granted a patent or two? Well, watch how PTAB too gains recognition, based on this press release:
Voip-Pal Announces the USPTO Has Denied on All Grounds Institution of Unified Patents Inc.’s Petition for Inter Parted Review Filed
Voip-Pal.com, Inc. (“Voip-Pal,” the “Company”) (VPLM) is pleased to announce that on November 18, 2016 the Patent Trial and Appeal Board (“PTAB”) of the United States Patent and Trademark Office (“USPTO”) denied on all grounds a petition for Inter Partes Review (“IPR”), IPR2016-01082, filed by Unified Patents Inc. against Voip-Pal’s Routing, Billing and Rating Patent (“RBR”), Patent No. 8,542,815 (“815”)
Patent Microcosm Makes a Mountain Out of a Molehill
As we noted above, in one particular case CAFC did not agree with PTAB. It’s one of those exceptions or rare situations. As expected, patent law firms try to use this one case against PTAB’s legitimacy and they hope to overturn software patents’ death. How many articles did we find about it last week? Plenty! See [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15] and also “Federal Circuit Tightens Standard for AIA Review” (behind paywall), which generalises based on one single case. Greedy law firms ignored what CAFC has said about PTAB’s function until they got something that supports their narrative/business model, so now they amplify it. It obviously got PTAB foes (patent maximalists) all riled up (see Watchtroll) and various sites that wrote about it were careful to note that it’s just one case of many. If one actually bothers visiting the USPTO’s site, there’s a post there which calls PTAB a success. To quote: “As part of the USPTO’s ongoing Enhanced Patent Quality Initiative, in April 2016 we launched the Post Grant Outcomes Pilot, focused on pending patent applications that are related to issued patents undergoing an America Invents Act (AIA) trial proceeding before the Patent Trial and Appeal Board (PTAB). We’d like to report that the Post Grant Outcomes Pilot has succeeded in making examiners aware of patents related to applications they are examining that are involved in PTAB trials, and in turn has facilitated the timely and effective examination of applications.”
Here is an article about that:
Post grant pilot a success, says PTAB chief judge
A US initiative called the “post grant outcomes pilot” has been a success, according to the chief judge of the Patent and Trial Appeal Board (PTAB).
In a blog by David Ruschke, chief judge at the PTAB, and Drew Hirschfeld, commissioner for patents, the pair noted that the pilot had “succeeded in making examiners aware of patents related to applications they are examining”.
This in turn facilitated “the timely and effective examination of applications”.
As part of the US Patent and Trademark Office’s (USPTO) ongoing “enhanced patent quality initiative”, the pilot was launched in April to focus on pending patent applications that are related to issued patents undergoing an America Invents Act (AIA) trial proceeding.
We sure hope that Ruschke and his colleagues will keep their job after the Trump administration fills the swamp, as it so habitually does amid transition. It looks like Lee will be pushed out, so what will that mean for PTAB and the America Invents Act (AIA)? █
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Progress can be halted and regression soon follow for oligarchy’s sake
Source: David Kappos interview with Intellectual Property Magazine (2010), modified by us
Summary: Just as the USPTO begins to get its act together and limit patent scope based on reasonably liberal SCOTUS Justices there are many reports suggesting that the Director of the USPTO will be driven out, courtesy of the Trump presidency that will also perturb SCTOUS
THE USPTO has a longstanding patent quality problem, albeit with Alice and few other top-level decisions (Mayo for instance) things are improving somewhat.
The other day we found Jaguar Land Rover pursuing patents on facial recognition, which basically means software patents. I have peer-reviewed papers for international journals about this subject; no doubt this is about software patents — possibly a thing that UK-IPO would reject outright. Here is what Britain’s worst paper wrote about it:
Motorists could soon unlock the doors of their car simply by walking up to it and taking a selfie.
Jaguar Land Rover is developing technology that uses facial recognition and gait analysis to detect when owners of its vehicles approach, to open the doors for them.
Details have been revealed in a recently published patent application by Jaguar Land Rover, but it is unclear when the technology might become available.
Nothing innovative here and also it’s about software. Shouldn’t the post-Alice guidelines* at the USPTO disqualify this? How about this other new patent application? It’s one which TechDirt introduced the other day with the headline “Sony Wants To Patent A System For Scoring Journalists’ ‘Veracity’,” noting that it’s too obvious for a patent. To quote directly: “Like anyone wouldn’t have come up with such a system if there wasn’t patent protections?”
“Nothing innovative here and also it’s about software.”Let’s face it, David Kappos has made more of a farce out of this system, having worked for IBM, a big proponent of software patents. Is the leadership of the USPTO ‘on loan’ (to large corporations)? Kappos now works as a software patents lobbyist and IBM is one of his clients. It disgraces the whole patent office on ethical grounds and nobody seems to mind.
Looking at some scholarly figures from Patently-O (published this past week, probably for some paper of his), it seems evident that Kappos did a lot of damage to patent quality. As Patently-O put it: “You’ll note the discontinuous nature of the average-PTA chart. The break-point in early 2010 shows the impact of the Federal Circuit’s Wyeth decision holding that the PTO had been under-calculating the adjustment.”
That’s also the Kappos impact. Here is another new graph. This graph, in our assessment, may simply mean that patent law firms broaden their applications’ “template” (notably with citations) in order to patent some more junk and make it seem credible, well-researched. To quote: “The number of references cited per patent continues to rise, albeit more slowly in recent years. For patents issued in 2016, the average patent includes more than 50 cited references. In my view – this is great, although it would certainly help if the examiner was given some clue as to why the reference is deemed relevant or what portion of the reference is relevant. (If an examiner has a question, they can ask the applicant). A not-surprising facet of the growth in references-cited is that almost all of the growth is in applicant-cited. Compared with 10 years ago, applicants cite 26 more references per patent (on average) while examiners cite only 1.5 more per patent. As you might also note from the difference between median and average – the citation distribution is highly skewed. Example: If we take the top-5% of patents from 2016 (those with the most references cited) – they include 35% of all of the cited references. My experience with this skew is that patent applicants considered more valuable by their owners are more likely to submit more prior art references.”
“Let’s face it, David Kappos has made more of a farce out of this system, having worked for IBM, a big proponent of software patents.”There is another new graph at Patently-O and the way we interpret it is quite simple: Quality of patents at the USPTO (or complexity of patents) is declining. Patent examiners don’t seem to mind. The more, the merrier.
One last post from Patently-O alludes to Donald Trump and notes that the majority of patents in the US are not even from the US. The part about ITC (where the I should stand for US, not “international”) says: “In an email, Prof. Mark Lemley suggests that we should look for “a rise in the importance of the ITC as we focus on blocking imports.” The ITC’s primary goal is to protect U.S. industries against unfair international trade. Lemley writes: “One interesting question is whether Trump will move the ITC’s jurisdiction back to its roots by insisting on a real domestic industry requirement.” Additional ITC movement could push-back against U.S. patents that are owned by foreign nations or unduly subsidized by a foreign nation.”
“He’ll turn the USPTO into a Great Swamp Again.”We criticised the ITC many times. It’s just an apparatus of US protectionism, so the I in the acronym is not suitable, like the W in WTO. Another article about Trump’s impact, this time from MIP, says: “A panel on the US election at the IP Dealmakers Forum speculated that the Trump administration may take a long time to appoint a USPTO director and the Republican leadership that worked on patent bills in the previous Congress will again push for reform” (we already noted that USPTO Director Lee may be on her way out).
We expect Trump to make the US patent system even worse, as corporate interests tend to be prioritised over people, based on his recent appointments. He’ll turn the USPTO into a Great Swamp Again. As for SCOTUS, expect more Conservative Justices there (not just a Scalia replacement), complete with preference for large corporations like Trump’s. █
* According to this new placement in IAM, the “USPTO seeks public comment regarding subject-matter eligibility” (covered here before). To quote: “On October 17 2016 the US Patent and Trademark Office (USPTO) announced that two roundtables will be held in the coming months to discuss patentable subject matter eligibility under 35 USC § 101. The roundtables have been set up to facilitate public comment and discussion regarding the USPTO’s current guidance on subject-matter eligibility as well as case law arising from interpretation of the requirements under 35 USC § 101.”
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Wanting to eat Linux (and Linux revenue) for breakfast…
Summary: Some of the latest reports pertaining to Microsoft’s (and its patent trolls’) pursuit/lobbying for software patents at a time when such patents lose their appeal/lustre in the United States
SOFTWARE PATENTS are still possible to attain at the USPTO, but this does not mean — and is certainly no guarantee — that courts or even boards (like PTAB) will tolerate these. In fact, both often reject these and this reduces the incentive to pursue software patents in the first place.
“They want software patents restored so that they can carry on blackmailing software companies (usually with Linux/Android) at greater ease.”Watchtroll offers tips for overcoming the barriers to software patenting, having come to grips with the fact that at the Court of Appeals for the Federal Circuit (CAFC) almost no software patents survive (one can count this year’s exceptions on the fingers of one hand).
As noted here the other day, based on two reports, Microsoft and its trolls continue trying to undermine the new rules. They want software patents restored so that they can carry on blackmailing software companies (usually with Linux/Android) at greater ease. According to this new report about Microsoft’s biggest troll:
Earlier this week, Intellectual Ventures (IV) petitioned the full Federal Circuit to review the panel opinion in Intellectual Ventures v. Symantec, which invalidated two of its patents under section 101. Both patents—the ’050 and the ’610—are directed to filtering email or file content. (IV does not challenge the invalidation of a third patent, which was directed to receiving, screening, and distributing email.) The petition echoes concerns raised by clients, courts, and the patent bar about the growing uncertainty about what is—and what is not—patent eligible, especially in the area of software patents. Identifying two emerging fault lines in the court’s evolving section 101 jurisprudence, IV urges the full court to bring much needed doctrinal clarity and methodological consistency to the patent eligibility analysis.
It’s important to keep track of this case.
Microsoft’s and Bill Gates’ (personal connections) patent troll now pressures CAFC to kowtow to software patents while the media keeps telling us that Microsoft loves Linux so much. We don’t suppose the Linux Foundation cares to comment on Microsoft’s own lobbying for software patents (directly, not just by proxy). It’s an Inconvenient truth when the Linux Foundation gets paid not to understand, having received Microsoft money for a while now [1, 2, 3]. Here is what Simon Phipps (head of OSI for a long time) wrote about the Linux Foundation’s decision to join Microsoft the other day:
“Microsoft’s and Bill Gates’ (personal connections) patent troll now pressures CAFC to kowtow to software patents while the media keeps telling us that Microsoft loves Linux so much.”Another odd ‘friend’ of Linux, a company that is attacking small companies using software patents while lobbying for software patents and spreading proprietary software, is mentioned in the news today. IBM’s Manny Schecter is trying to find some balance between secrecy and software patents and we sure hope that he’ll quit his stance on software patents as it often makes IBM look almost as hostile as Microsoft. █
‘“Other than Bill Gates, I don’t know of any high tech CEO that sits down to review the company’s IP portfolio” —Marshall Phelps (of IBM and Microsoft)
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Summary: Chinese policy on software patents and the acceptance of patent trolling is bad news not just for China but for companies everywhere, as they too become vulnerable to trolls and to Chinese companies that file cases in the West
NOT ONLY the EPO and USPTO wrestle with the question of software patenting, as we last noted in our previous post. According to this new article (behind paywall), “US-based IP owners [read trolls] to look to Europe as a place they can get better, more effective rights,” Benjamin Henrion wrote today.
“It’s a real problem and it can destroy what’s left of Europe’s software industry (discouraging development and/or investment).”We have been warning about this for a while and we already see patent trolls coming to the UK, emboldened by the EPO’s bad policies. It’s a real problem and it can destroy what’s left of Europe’s software industry (discouraging development and/or investment). Do we want London to become another EDTX?
Texas, based on this new tweet, attracts ‘business’ like patent lawsuits. By not serving justice but instead serving trolls and aggressors it now welcomes ‘business’ from Asia. “Hitachi filed patent suits in EDTX v Huawei and ZTE,” IP Hawk wrote and IAM commented on it as follows: “Japanese company takes on Chinese companies in EDTX. Can’t happen very often.”
IAM is both a proponent of patent trolls and a tracker of them in east Asia as of late (many articles about it, some of which we wrote about before). China/Far East trolls are a growing problem also for Western companies because some large Chinese firms already take their lawsuits to EDTX (Texas) and demand a lot of money. China’s state-connected telecom ‘arm’, Huawei, reportedly liaises with a large patent troll, InterDigital, which we covered here before (even a decade ago). To quote IAM’s article: “When Huawei and InterDigital revealed that they had entered into a broad worldwide licensing agreement recently, it brought to an end a years-long dispute over standard-essential patents that at times had been rather ugly. Now, relations between the two companies couldn’t be more different as they look to partner on future research and development efforts – and, potentially, on monetising patents, too.”
“Why is China doing this after working to expose Microsoft’s patents that had been used to extort Android device makers across China?”The trolls epidemic sure spreads fast in China this year. “Enemies no more,” one person wrote, “patents bring InterDigital &Huawei together. Consequences could be significant.”
It’s especially important if one considers what kind of patent these are. Henrion says “no glory for the trolls.” However, for them it’s quite a win and definitely more glory (when the giant of China gives legitimacy to a such a giant troll). This gigantic deal will probably help InterDigital go after a lot more companies, even in China.
Why is China doing this after working to expose Microsoft’s patents that had been used to extort Android device makers across China? Well, China seems eager to destroy the progress it made by letting SIPO off the hook, pursuing just quantity (not quality) of patents, very much like Battistelli at the EPO.
This new article by Peter Leung was publishes yesterday and said “China Looks to Boost Protection for Software Patents”. Have they made it official now? To quote Bloomberg:
A draft revision to China’s patent examination guidelines released late last month will likely make it easier to get software and business method patents.
Other proposed changes to ease the standard for amending granted patent claims should also help patent holders and, especially, patent assertion entities, practitioners say.
The draft guidelines follow developments that some have interpreted as evidence of China’s maturing and improving environment for IP owners. The guidelines are not law but rules for instructing examiners at China’s State Intellectual Property Office (SIPO) on how to properly examine patent applications.
It’s hard to see what China has to gain from this; SIPO definitely gets more power and money, but at whose expense? Moreover, why has SIPO not learned no lessons from the USPTO’s mea culpa? █
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Shutting their ears when they lose the argument
Summary: Although patent lawyers want us to believe that software patents are just fine (citing cases fewer than the fingers of one hand), the reality is rather grim for them and we explain why
SOFTWARE patents are a dying breed of patents (or patent family) in the United States. They might still be enjoying somewhat of a legacy or inertia (until expiry), but there’s not much of a future for them as long as Alice is upheld by SCOTUS (hopefully — and there’s absolutely no guarantee here — Trump’s Conservative Justices won’t reverse/override this decision/precedent).
“Over the past week we saw the predators bemoaning the state of software patents in the US.”FOSS-centric companies don't bother with such patents or simply give up on any prospect of lawsuits (defensive/retaliatory purposes only). This new article asks in its headline, “Is a Blockchain Patent Still Possible?”
Even if such a patent was granted, in the area/domain of financial software patents there’s probably the worst success rate (in the courts). Some estimate the success rate to be 10% or lower. “But regardless of whether a viable bitcoin patent exists,” says the article, “both Nakamoto’s 2008 article describing the bitcoin system and the bitcoin network in operation since 2009 qualify as “prior art” against any new attempt to patent a blockchain system.”
In simple terms, prior art in the Internet and especially post-World Wide Web era (1990s onwards) makes it hard to defend software patents, even if they have been granted in error by the USPTO.
“Imagine the reaction if accountants openly advertised methods for dodging/evading tax. Imagine if they did so on their own Web sites…”Over the past week we saw the predators bemoaning the state of software patents in the US. Haynes and Boone LLP bemoaned the scarcity of “Patent-Eligible Software Claims” (post-Alice) and later noted that such patents can barely withstand courts’ scrutiny. Just watch Haynes and Boone LLP moaning and sobbing because the US hardly tolerates software patents these days. They’re partly in denial over it and they latch onto few exceptional cases to make it seem as though things might be improving (cherry-picking tactics that piggyback particular Court of Appeals for the Federal Circuit cases).
Other such dishonest firms are openly trying to work out new ways by which to patent software, even when software patents are semi-officially not acceptable. Who are these people kidding? Courts of the highest level repeatedly say “no” to software patents, but Watchtroll tries to tell people how to fool the courts and get software patents anyway. How very typical from him.
“Where are the real journalists and why are news feeds dominated by pure marketing, composed by those who try to attract business by misleading claims (bias by omission)?”Imagine the reaction if accountants openly advertised methods for dodging/evading tax. Imagine if they did so on their own Web sites…
Another law firm was pushing the software patents agenda a few days ago. Rather than be frank with clients and acknowledge that Alice made such patents not worth pursuing they just add question marks (twice in the headline alone) and then name-drop the aforementioned cherry-picked CAFC cases.
Here we have another example of a patent law firm spreading this spin about software patents, again by cherry-picking CAFC decisions to suit their agenda.
Where are the real journalists and why are news feeds dominated by pure marketing, composed by those who try to attract business by misleading claims (bias by omission)? What ever happened to investigative reporting and well-funded newspapers? It’s all PR now.
Taking old decisions that somehow suit their narrative, patent law firms tried to tell us software patents were fine also (another example here). They suggested ways of ‘tricking’ CAFC. Here is another new example of that, courtesy of Husch Blackwell LLP.
“They only keep track of (or a record of) the “wins” and none of the defeats, in order to construct a false, misleading picture, then present that to clients under the guise of “advice” or even “news”.”When will we see an equal (or greater) number of articles that were not actually written by those who try to sell something? Imagine what war journalism would look like if 90% of it was composed directly by companies that sell arms…
Based on what we have been able to gather, all the latest cases yielded nothing but bad news for software patents. “US Pat 9,083,997,” said one attorney the other say, was “Killed by Twitter @ Dist. Ct w/Alice/101″ and Versata’s software patents came under scrutiny from Ford, as the following good news site put it:
Ford Motor Co. returned to the Patent Trial and Appeal Board on Friday to challenge three Versata software patents involved in a trade secrets and infringement case, just over a month after the board declined the auto maker’s request that the PTAB institute America Invents Act reviews.
In separate petitions, Ford argued various claims in the Versata Development Group Inc. patents are invalid because they are obvious. The patents cover automotive configuration manager software that Versata has accused Ford of stealing.
As we noted in our previous post, the Patent Trial and Appeal Board is the most prolific eliminator of software patents. As for Versata, we wrote dozens of articles about it in past years. We predict that its patents are now on the chopping block, but don’t expect patent law firms to pay attention to any of this. They only keep track of (or a record of) the “wins” and none of the defeats, in order to construct a false, misleading picture, then present that to clients under the guise of “advice” or even “news”. █
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Summary: Patent trolls and the meta-industry which creates nothing but lawsuits is growingly afraid of boards that ascertain patent quality at the USPTO
THE Patent Trial and Appeal Board (PTAB) is probably AIA’s best outcome. It helps eliminate software patents by the thousands, i.e. a lot more rapidly than courts do, and it erodes confidence in software patents — enough to discourage some new patent applications and even more so patent lawsuits (these have become too risky for the plaintiff).
As one might expect, the patent ‘industry’ (mostly patent law firms) is up in arms and some resorted to insulting PTAB. Others complained to the Court of Appeals for the Federal Circuit (CAFC), but it didn’t get them anywhere. CAFC has done nothing to stop or even slow down PTAB.
“CAFC has done nothing to stop or even slow down PTAB.”Here we have one of the more strident patent maximalists’ sites moaning to CAFC about PTAB, for PTAB is throwing away bad patents without giving assignees the benefit of the doubt. To quote the author: “The Federal Circuit remanded a final written decision of the Patent Trial and Appeal Board (“PTAB” or “Board”) because the Board invalidated certain claims in a patent without providing adequate notice or opportunity to the patentee to respond to an assertion about a prior art reference. Interestingly, in the In re NuVasive, Inc. opinion decided on November 9, 2016, the Federal Circuit reviewed the outcome of two IPR proceedings related to the same patent, U.S. Patent No. 8,187,334, directed to implants for spinal fusion surgery.”
Another one of those sites (albeit a lot more polite and usually professional/academic) wrote about PTAB and also about “non-reviewable decisions”, i.e. decisions without proper oversight:
Arbitrator as Arbitrary: Non-reviewable decisions (whether by the USPTO or by an arbitrator) are generally troubling because they create the potential for arbitrary awards that depart from both the law and facts.
The case was originally denied hearing by the Texas Supreme Court. On rehearing request, the Court has showed some interest by requesting further briefing from Jenner & Block and two amicus filings have supported the petition. Because it is a Federal Law (the FAA) that has prevented judicial review thus far, the case will be appealable directly to the U.S. Supreme Court once Texas gives its final word.
The US granted literally hundreds of thousands of software patents in just over a decade. In order to clean up this mess, which is basically a big chunk of invalid patents (clogging up the system), something like PTAB is not only useful but also necessary if not imperative. The reaction to PTAB from patent maximalists has been rather revealing. They just want more and more patents on just about everything someone does or thinks. It’s them who are the radicals or extremists, not reformers who remind them — as we habitually do — that the patent system was originally created to give incentive for publication and disseminate knowledge (or increase overall innovation), not to feed a newly-created collective of parasites who assume that more than 10 million patents should be filed and most patent applications be accepted by the examiners (and later by nontechnical judges).
The US is still floating in a swamp of bad patents and a popular phrase in the US right now is, “drain the swamp!” █
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Michelle Lee (below on the left) wanted patent reform, but Donald Trump will quite likely crush it
Summary: Another signal that whatever progress was made at the USPTO (tightening patent scope among other improvements) could soon be crushed by a Republican administration
THE US patent, copyright, trademark etc. system is likely to change under the new President. He has some rather notorious experience trying to tilt the trade marks system to his own advantage, being a reckless billionaire who was born very rich and privileged. Protectionism (perpetuating might, power, and money) comes naturally for Trump.
An opportunity to advise the USPTO is reportedly being given, but megacorporations and their lobbyists (and/or lawyers) will surely dominate the proposals and ensure that virtually nothing changes for the better.
“Protectionism (perpetuating might, power, and money) comes naturally for Trump.”As expected, the new President will herald an era for billionaires (like Donald Trump) and their copyright/trademark/patent monopolies. IAM thinks that patent reform will be put on hold. Here is why: “In her keynote speech USPTO Director Michelle Lee predicted that once patent reform did come back on the agenda it would be more targeted than previous, more comprehensive proposals.”
According to this article from IP Watch: “Now in her final weeks in office, United States Patent and Trademark Office Director Michelle Lee today looked back over the Obama administration’s work on patents and made predictions for the next administration due to take over in January. She hailed the outgoing administration’s successes and said to expect a continued focus on a strong IP system, legislative changes on hot button issues but not right away, and continued engagement around the world.”
Here is what Wall Street’s media said: “President-elect Donald Trump’s pick to head the Patent and Trademark Office will likely be very different from Director Michelle K. Lee, who was Google’s top patent attorney before heading the PTO.”
“Under Kappos’ leadership the USPTO granted terrible patents and led to a mess that only in recent years (post Alice, Mayo and AIA) started to improve a bit.”Whoever is picked next, it hopefully won’t be yet another corporate lobbyist turncoat like David Kappos. Under Kappos’ leadership the USPTO granted terrible patents and led to a mess that only the recent years (post Alice, Mayo and AIA) started to improve a bit.
Found via Patently-O prior to all the above was this publication from the USPTO itself (directy).
MIP is meanwhile chatting with the commissioner for trademarks at USPTO. It doesn’t seem like she too will be removed from her position. █
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