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08.02.18

Shelston IP and Its “Conspiracy Theories”

Posted in Australia, Patents at 3:44 am by Dr. Roy Schestowitz

Truth police?

Australian police

Summary: Shelston IP continues to belittle those who don’t agree with it (or its financial agenda, which revolves around litigation)

THE ban on software patents in New Zealand was recently more or less expanded to Australia (not just the USPTO). In fact, IP Australia is being sued over it.

“Shelston IP has, in our experience, become a sworn foe of software developers both in Australia and in New Zealand.”Shelston IP’s Gareth Dixon and Jessica Chadbourne have just published this article amid restrictions on patent scope. As a reminder, Shelston IP Pty Ltd has been pushing software patents agenda and also patents on life (they are patent maximalists, as we noted here many times before) and they’re meddling even in New Zealand (in spite of being an Australian firm). We previously showed how it was maligning developers who had successfully opposed software patents. Now here they are belittling their opposition as usual. To quote: “Conspiracy theories outlining coordinated parliamentary schedules tend not to hold much water. However, if it’s mere coincidence that sees second-tier patents regimes being considered simultaneously across Australia and New Zealand, then, as proponents of such regimes, we’ll take it.”

Shelston IP has, in our experience, become a sworn foe of software developers both in Australia and in New Zealand. With derogatory terms, too.

07.19.18

Australia Says No to Software Patents

Posted in Australia, Law, Patents at 9:24 am by Dr. Roy Schestowitz

Australian flag

Summary: Rokt is now fighting the Australian patent office over its decision to reject software patents; Shelston IP, an Australian patent law firm (originally from Melbourne), already meddles a great deal in such policies/decisions, hoping to overturn them

LEAVING aside the EPO and USPTO, two of the world’s largest English-speaking patent offices, there has been some news from Australia, where IP Australia (the Australian patent office) told stakeholders that software isn’t really patent-eligible anymore. We’ve seen several articles about this lately (we mentioned some a week ago) and Lawyerly is the latest to spread the news and shed light on it. “Rokt’s software innovative but not patentable, IP Australia tells court” is the headline. Here’s the key part: “An invention that simply puts “a business method or scheme into a computer” is not patentable, the Commissioner of Patents told a court Wednesday on the first day of a highly anticipated trial over a rejected software patent application by marketing tech startup Rokt.”

“This was achieved in the face of great pressure and constant lobbying from law firms.”Fantastic! Well done, Australia!

This was achieved in the face of great pressure and constant lobbying from law firms. We wrote about it dozens of times over the years and named some of the culprits. In Australia we’ve seen Shelston IP quite a lot recently, attacking the policy and smearing officials for doing the right thing. Shelston IP went further than this and attempted the same thing in New Zealand, where software patents have never been allowed.

Earlier this week we saw Shelston IP rearing its ugly head again in Mondaq and in Lexology (we presume paid placements). Shelston IP (Shelston IP Pty Ltd being its full name), the loudest bunch of lobbyists for software patents down under (Australia and New Zealand), are clearly still meddling in New Zealand’s policies (but they’re Australian!). They’re targeting the Intellectual Property Office of New Zealand (IPONZ). Here’s what they wrote:

As seasoned patent scribes, who have between us covered almost everything of significance coming out of New Zealand over the past 15 years, the manner in which a recent article resonated was somewhat unexpected. The article didn’t cover the new Patents Act 2013, poisonous divisionals, the TPP, or even Eminem supposedly suing the NZ Government for copyright infringement – rather, it related to the proposed “Advancement” patent. On reflection, recent goings-on in Australia regarding the will they/won’t they nature of the “Innovation” patent cull probably served to bring the notion of Australasian second-tier patents more into the global IP focus than it might otherwise be. Nonetheless, given that we’ve fielded a few recent questions of the “what’s happening?” variety, this seems like an opportune time for a quick update.

[...]

Pre-history of the Advancement Patents Bill

New Zealand’s new Patents Act 2013 took effect from 13 September 2014. Any complete application filed in the Intellectual Property Office of New Zealand (IPONZ) following commencement of the new legislation is subject to patentability standards substantially aligned with international norms. Such standards include examination for inventive step and represent a perceptible increase with respect to those prescribed under the outgoing Patents Act 1953, under which a second-tier patents regime was never needed.

Why the impression that New Zealand never “needed” a second-tier patents regime?

Under the outgoing Patents Act 1953, inventive step was not examined, which in effect, meant that one could often obtain a New Zealand standard (20 year) patent for the same “low level” invention that if pursued before the Australian Patent Office may only have been worthy of an Innovation (8 year) patent. With the advent of the Patents Act 2013, this was no longer true. Indeed, the balance had been effectively reversed.

[...]

Under New Zealand’s 1953 Act, one could essentially take an invention/innovation worthy only of an Australian Innovation patent (8-year term) and use it to obtain a New Zealand standard patent (20 year term); this facility has been removed with the advent of the Patents Act 2013. However, in so doing, a New Zealand patent applicant having only a low-level invention is left with no fallback position, for there is currently no second-tier patent system.

Whereas the legislative space for a New Zealand second-tier patent system and the economic drivers for its adoption have been well known and publicised, Dr Parmar now provides a political impetus that had previously been lacking.

As we wrote earlier this summer, these so-called ‘free’ ‘trade’ ‘agreements’ are being used to shoehorn law changes that would harm the general public for multinational corporations’ gain. We definitely need to watch out for the possibility that they’ll pull something off in the same sense (and means) Team UPC strives to in Europe. The above too uses the term “unitary” and it’s not a coincidence.

07.10.18

The Demise of East Texan Courts and the Ascent of PTAB, Alice and a SCOTUS-Compliant CAFC May Mean That US Software Patents Are Officially ‘Dead’

Posted in America, Australia, Patents at 5:08 am by Dr. Roy Schestowitz

In the US and in Australia we’re seeing signs that software patents have been left behind, whereas SIPO (China) and the EPO remain stuck in the past

Sam Houston
Sam Houston, going back to away from Houston?

Summary: Companies come to grips with the need to divest and distance themselves from abstract patents; such patents are simply not tolerated by courts anymore (even if patent offices continue granting many such patents for the sake of profit)

THE USPTO is the world’s most influential patent office, so it’s hardly a surprise that we dedicate so much time (and words) to it. We watch it very closely.

“Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren’t getting anywhere near the filings they used to get.”Yesterday we saw this article about patents on cars — surely a physical thing. What about software patents? As we wrote yesterday, some continue to be granted. But do courts accept them? If so, which courts? After TC Heartland we’ve been seeing different district courts getting involved (before the Federal Circuit is even invoked).

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals.”
      –New Judgment
Courts in East Texas (the Eastern District of Texas, abbreviated TXED/EDTX) aren't getting anywhere near the filings they used to get. We mean lawsuit filings in the docket, not patent applications or Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). Here’s yesterday’s example from the Eastern District of Texas, one wherein:

The court denied plaintiff’s motion for summary judgment that its wireless communication patent was not invalid for improper inventorship on the grounds that defendant could not identify a purported inventor.

With some double negation there it may be hard to digest, but ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there’s not much assurance of positive results for the plaintiffs, who are often classic patent trolls.

“…ever since TC Heartland (summer of 2017) the number of lawsuits collapsed even further; there’s not much assurance of positive results for the plaintiffs, who are often classic patent trolls.”The Australian Financial Review has meanwhile published this article about Rokt’s highly misguided lawsuit. Bruce Buchanan is angry at IP Australia (Australia’s patent office) because Australia correctly rejects software patents (it should!). From the article:

Former Jetstar chief executive and current CEO of fast-growing Australian marketing technology start-up Rokt Bruce Buchanan has hit out at IP Australia for discouraging innovation through its approach to software patents, saying the government agency doesn’t properly understand the tech industry.

Rokt is considered to be one of the country’s next potential tech unicorns, having raised $34.5 million in venture funding last year, but is heading to a court battle with IP Australia over a patent it attempted to lodge to protect a method it has developed to sequence messaging between retailers and shoppers in e-commerce transactions.

So in Australia — like in the US — software patents are hopeless. They’re not even worth pursing. We recently wrote several dozens of articles about court decisions and legislation in Australia. They’re moving well away from software patents — a fact that only upsets those who bet their ‘farm’ on patent litigation (with software patents).

“They’re moving well away from software patents — a fact that only upsets those who bet their ‘farm’ on patent litigation (with software patents).”We have meanwhile found this new article from Mass Device. It’s about “Nevro’s patent spat with Boston Scientific” — a spat which seems to involve nothing but software patents. “The inventive concept appears to be based almost exclusively in the software,” the Judge rightly asserted, rejecting the claims. Here’s the relevant part, in the judge’s own words:

“The inventive concept appears to be based almost exclusively in the software. That is, the invention is a system in which software is used to do something different with signal generators than what was done before – the software enables the clinician to program the signal generator to send high-frequency signals, whereas in prior systems the software enabled the clinician to program the signal generator to send lower-frequency signals. Yet, in most of the asserted system claims, there is no mention of the programming function – no mention of the one aspect of the system that is actually inventive,” he wrote.

They are trying to pass off algorithms as “medical” (we gave several examples over the past month alone). I’ve seen these tricks in my profession, I saw that in Patrick Corcoran's last decision 4 years ago and it’s a trick that all patent examiners need to become familiar with. US patent number 10,000,000 uses a similar trick and should therefore be invalidated, based on Alice/Section 101. If all one does is pick some signals/inputs from some “devices” and then processes that using a computer program, this program is then still abstract; the “devices” (which the program is oblivious to) do not add a “physical” element to the patent. In fact, they’re irrelevant to it because they’re not at all part of the supposed “innovation” or “inventive step”.

“If one is unable to demonstrate that the skin itself is a human invention (it’s not, it’s just part of life/nature), then we’re likely dealing here with that same old loophole and judges won’t fall for it (not in higher courts anyway).”2 patents of ARANZ Medical have just been bragged about [1, 2] in yesterday’s press release, perhaps attempting to conflate programs with “skin” (or “skin surface”).

If one is unable to demonstrate that the skin itself is a human invention (it’s not, it’s just part of life/nature), then we’re likely dealing here with that same old loophole and judges won’t fall for it (not in higher courts anyway).

06.09.18

Patents on Nature, Life and the Environment: Lessons From EPO and Australian Courts

Posted in Australia, Europe, Patents at 6:35 am by Dr. Roy Schestowitz

Monopoly does not solve issues; especially when granted on things that always existed

Iguazu Falls

Summary: The subject of patent scope revisited in light of news and views about patents “on life” (typically DNA, genetics, plants, seeds, animals); we focus on Europe and on Australia, which is known for CSIRO’s controversial patent-related activities

THERE are different types of people in the patent “profession” (or domain), ranging from examiners to litigators. There are also different mindsets, ranging from patent rationalists to patent extremists, where the extreme views pertain to patent scope, litigation zeal, and sometimes boil down to fundamental hatred of science and technology (that’s what sites such as Watchtroll stand for).

“It’s important that — in order to avoid protest if not revolt from the public — patent law should be restricted or confined to public interest.”We don’t want to generalise and we also recognise that many people read this site because they want to read alternative viewpoints, recognising that Techrights is not against patents but pro-patent reason. It’s important that — in order to avoid protest if not revolt from the public — patent law should be restricted or confined to public interest. It should adhere to common sense, economic models, and scientists’ interests, not law firms’ interests. Lawyers should ideally be there to help the scientists, not just to help themselves. In practice, however, this rarely happens, as we shall explain in our next post (about UPC).

“Lawyers should ideally be there to help the scientists, not just to help themselves.”Hogwash from Joanna Rowley (Haseltine Lake, LLP) came just before the weekend, both in their Web site and others (throwing copies elsewhere), titled “World Environment Day – How patents are saving our environment”.

They’re piggypacking “World Environment Day” for self promotion. Giving people a monopoly on how to improve things actually harms, prevents solutions from being implemented. We wrote this many times before in response to greenwashing of patents by EPO management. There’s also the class of patents which pertains to nature and life; those are even more problematic.

EPO insiders are generally aware of the limits of patenting and why these limits are needed. “Stop patents on life,” one of them told us the other day, is something we “might be interested in.” The insider linked to “Patente auf Leben stoppen!” (in German). We wrote about this subject many times before, since more than a decade ago. So did many patent critics like Kinsella, whose latest episode is titled “Nothing Exempt”. Kinsella is one of those former and disgruntled insiders, who nowadays advocates even abolition of so-called ‘IP’. He’s pretty high-profile a voice and we assume many of our readers are already familiar with his work (we covered that many years ago).

“This was a subject of much/great debate earlier this year when oppositions folks at the EPO denied a CRISPR patent, overturning some prior decisions (by extension at least).”That brings us to some news from Australia’s top court. As should be obvious, at the very least based on the “Australia” section of our “Software Patents Around the World” page, we are mostly interested in Australia because of its software patents stance/policy. On few occasions we wrote about Australian patents on life itself, as ‘championed’ by CSIRO in Australia. This was a subject of much/great debate earlier this year when oppositions folks at the EPO denied a CRISPR patent, overturning some prior decisions (by extension at least). People and firms have begun questioning whether it’s even worth pursuing patents on DNA/genetics in Europe anymore.

A new article by Michael Zammit and Scott Philp (from the software patents booster, Shelston IP) speaks of “strategic use and management in the resources sector” (in relation to patents). Another new article by Kazumasa Watanabe, Anthony Muratore and Stephanie W. Wang (Jones Day) has just been plugged into Mondaq, taking note of a new case at the High Court of Australia. Background and conclusion/outcome/closing words below:

Pfizer manufactures and supplies the biological medicine Enbrel (etanercept), used in the treatment of autoimmune diseases. Pfizer brought an application pursuant to rule 7.23 of the Federal Court Rules 2011 for preliminary discovery of certain SB confidential documents that Pfizer believed would enable it to decide whether or not to commence proceedings for patent infringement against SB. The patents in suit concerned processes relating to one of the phases in the development of biological medicines.

[...]

On appeal, the Full Court allowed Pfizer’s appeal: Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193, holding that preliminary discovery applications are not intended to be mini-trials. The essence of rule 7.23 focuses on what “may” be the position. The foundation of any application is that the prospective applicant reasonably believes that it may have a right to relief; that is, the belief must be reasonable and about something that “may be”, not “is”, the case.

In practice, to defeat such a claim, it will be necessary either to show that the subjectively held belief does not exist or, if it does, there is no reasonable basis for thinking that there may be such a case. Showing that some aspect of the material on which the belief is based is contestable, or even arguably wrong, will rarely come close to making good such a contention. Many views may be held with which others disagree, but that does not make the views necessarily unreasonably held.

Therefore, the relevant question was not whether one scientific view was more or less persuasive than another but, rather, whether Dr Ibarra’s views so lacked foundation that Mr Silvestri’s reliance on them did not demonstrate that he reasonably believed that Pfizer may have a right to obtain relief. As Dr Ibarra’s views were not criticised as ones that could not reasonably be held by anyone in her position, this question was answered in the negative.

In its special leave application to the High Court, SB argued, inter alia, that the Full Court shifted focus away from an objective assessment of the facts as to whether a reasonable basis was provided for the prospective applicant believing it may have the right to relief to an assessment of the subjective state of mind of the particular deponents who asserted the relevant belief. However, the High Court was not persuaded to grant special leave to appeal.

The Australian system (especially the legal system) follows the structures and standards of the old English system and is heavily inspired by the US. When it comes to patents, there’s not much difference either. We are glad to see that software patents are on their death throes in Australia and hope that the same will happen to patents on nature/life. Those aren’t the sorts of ‘inventions’ the patent system’s founders had in mind at this system’s inception time.

05.31.18

Software Patents Are a Dying Breed of Patents Except in China (and Maybe EPO)

Posted in America, Asia, Australia, Europe, Patents at 11:04 pm by Dr. Roy Schestowitz

Shen (SIPO), Lutz, Battistelli, and Lamy at the end of 2016 in Saint-Germain-en-Laye

SIPO Lamy and Battistelli

Summary: The patent maximalists would like us to believe otherwise, but software patents are generally going away; even if they get granted by patent offices (to fake ‘production’ or game the numbers) the courts typically reject these

WHILE the EPO emulates China on human rights (or lack thereof) it also emulates China on patent maximalism, openly promoting software patents while the USPTO gradually moves away from these.

It’s important to recognise that with the exception of China and the EPO (we don’t say Europe because pertinent national patent offices across the European continent don’t apply) IP5 is not so interested in software patents.

There’s a new interview at Managing IP, a patent maximalists’ site. “Karry Lai talks with Michael Ding, ABB’s head of IP operations for Asia, the Middle East and Africa, about trends in software patents and trade secret protection in China,” says the summary. “From IP [sic] assets generation, extraction to risk mitigation, Michael Ding works with an IP team of more than 10 people to ensure that IP rights at ABB are well protected.” [sic]

Karry Lai, who is based in Hong Kong, published this behind a paywall, so we cannot see what’s said about software patents (the headline is “ABB’s Asia IP head on software patents and trade secrets”). We routinely emphasise that China is just about the only country that allows software patents these days (without even hiding that it’s about algorithms). The EPO still tries to mask this using buzzwords, maintaining some thinly-veiled perception of compliance with the law.

“The EPO still tries to mask this using buzzwords, maintaining some thinly-veiled perception of compliance with the law.”Software patents in Australia, as this new post serves to reveal (cross-posted elsewhere, e.g. Lexology), are also going away. Australia too has become rather intolerant of software patents, even before applying or taking into full effect recommendations from the Productivity Commission (it opposes software patents). Look below the somewhat misleading headline from the patent microcosm in Australia (Sam Mickan and Mattia Pagani from Davies Collison Cave). The court rejected software patents; not just once:

In Encompass Corporation Pty Ltd v InfoTrack Pty Ltd [2018] FCA 421, Justice Perram of the Federal Court of Australia found two innovation patents to be invalid for not involving a manner of manufacture, thus failing the Australian test for patentable subject matter.

[...]

Justice Perram, when considering the issue of patentability, acknowledged that the implementation by a computer of the combination of steps of the invention constitutes a new use of the computer, capable of enhancing the experience of a user. However, what the inventions failed to do, in his Honour’s view, was to cause an improvement in the computer itself.

Justice Perram noted that, in principle, any software could be said to cause an improvement in a computer, because without it, the computer would not be able to perform a certain task. The requisite improvement however was considered to be one that provides the computer with some new ability, previously unattainable. A case in point of the necessary improvement was IBM’s software for drawing curves without using floating point arithmetic.

[...]

This judgment by a single judge of the Federal Court represents a strict interpretation of the principles established by the Full Federal Court in Research Affiliates and RPL Central. It will be interesting to see whether the same strict interpretation is maintained on appeal.

This case demonstrates that it may be beneficial to link a discussion of innovative step (or inventive step) to that of a technical contribution (e.g., new functionality in a computer) despite the Australian requirements for inventive/innovative step and manner of manufacture being formally separate.

On this note, following a recommendation by the Productivity Commission in its Inquiry Report on IP Arrangements that “IP Australia should reform its patent filing processes to require applicants to identify the technical features of the invention in the set of claims”, there has been a public consultation by IP Australia, in which three options were put forward to improve the information available to Examiners when assessing inventive step. You can read more about that public consultation here. In response to that consultation, IP Australia has indicated that they propose to adopt a requirement that Examiners assess technical features through the inventive step requirements, and that this change will be implemented through changes to the Patent Manual of Practice and Procedure.

The above words, terms like “innovative step” (or “inventive step”) as well as “technical contribution,” are commonly (mis)used at the EPO. At the end, however, it’s for national courts to decide (there’s no UPC) and experience suggests they’re not particularly friendly towards such patents.

We look forward to the day the world as a whole can leave software patents behind, putting them deep inside the ashtray of “bad ideas we’ve abandoned.”

05.17.18

In Australia the Productivity Commission Decides/Guides Patent Law

Posted in Australia, Law, Patents at 5:09 pm by Dr. Roy Schestowitz

Facts- or evidence-based policy

Australian road sign

Summary: IP Australia, the patent office of Australia, considers abolishing “innovation patents” but has not done so yet (pending consultation)

THE “IP5″ (three east Asian patent offices along with the EPO and USPTO) accounts for the lion’s share of patents, at least based on how WIPO adds up the numbers. But that does not mean that we can simply ignore other (much smaller and/or less significant) patent offices.

“Their CMS suffers not only many downtimes but glitches or human errors as well.”A few weeks ago we wrote about Shelston IP's latest lobbying/push to change Australia’s patent policy in favour of software patents (same in New Zealand, which we last mentioned last month). A couple of days ago Kluwer Patent Blog wrote about the legal status as follows:

In its response to public submissions with respect to abolishing innovation patents, IP Australia reaffirmed its support for this course of action and noted that “[n]o significant new evidence on the value of the innovation patent system was presented by the submissions that had not already been considered by the Productivity Commission and the Government in reaching that decision“.

IP Australia was also of the view that the amendments in the exposure draft struck the right balance to phase out the innovation patent system without affecting existing rights. The amendments in the exposure draft allowed for innovation patents that would have a priority date prior to the commencement of the amendments.

However, the Government appears to want to consider the matter further. IP Australia’s policy release states that it has “decided to undertake further industry consultation targeted at better understanding the needs of SMEs before the phase out of the innovation patent occurs“.

John Collins and Sumer Dayal posted this update/duplicate the following day, but it has been deleted since. Their CMS suffers not only many downtimes but glitches or human errors as well. Sometimes the site goes offline for as much as a day. They basically say that “a mechanism to phase out the innovation patent system and repeal certain data requirements relating to pharmaceutical patents with an extended term” was included but omitted. “Innovation patents appear to have survived the guillotine this time around,” they conclude. We expect it to vanish some time soon (maybe not this year) and the impact on software patenting was discussed here last year (see below).

Previously (last year) on so-called “innovation patents”:

04.28.18

New Zealand and India, Two Nations That Reject Software Patents, Are Still Besieged by Patent Law Firms

Posted in Asia, Australia, Patents at 8:09 am by Dr. Roy Schestowitz

New Zealand postage

Summary: In lesser talked-about patent offices, such as India’s and New Zealand’s, software patents remain infeasible to enforce (let alone get) but patent law firms and maximalists keep trying to change that

OUR focus on the EPO and USPTO often distracts us from smaller patent offices, such as IPONZ, which still denies software patents in New Zealand (NZ), loopholes notwithstanding, just like in India and in Europe before Battistelli (who opened the floodgates).

The NZ “proposed bill was seeking to include software patents,” says Sarah Putt (Computerworld/IDG in New Zealand). She has just helped show that patent zealots and profiteers in NZ never really quit trying to introduce software patents down there. She said:

A private members bill introduced by National Party spokesperson for Science and Innovation Parmjeet Parmar, which proposes a second-tier patent system, has raised fears that the issue of ‘software patents’ is back on the agenda.

The Patents (Advancement Patents) Amendment Bill seeks to introduce a second tier system to make patents easier and less costly to obtain and “require a lesser advancement in order to be granted than the inventive step required for other kinds of patents”. It would also provide a shorter term of protection – the proposal being 10 years instead of 20 years.

When asked by Computerworld if her proposed bill was seeking to include software patents, Parmar replied: “The advancement patent is proposed to apply to the same subject matter permissible for a standard patent. Section 11 of the Patents Act which applies to Computer Programs is amended to insert “or advancement’ in there which actually clarifies that the Section is applicable to advancement patents too.”

[...]

ITP objects to software patents because it claims that the time frame is too long (even if this was reduced from 20 to 10 years) in the tech industry when innovation moves so fast. Matthews points out that 20 years ago Netflix was a small-time DVD mail order company and Google hadn’t been invented (until September this year).

This is definitely something to keep an eye on and keep vigilant about (we shall inform some contacts we have in NZ).

In other news, there’s this new article By Sudip K. Mitra and Alain Villeneuve (Vedder Price) explaining to patent aggressors how to dodge the Supreme Court’s decision and enforce software patents that are bogus in defiance of Alice. They pushed this nonsense in more than one site [1, 2], possibly in exchange for payments, and they also push for litigation (implicitly):

In 2014, the United States Supreme Court in a landmark decision in the field of Patent Law (Alice Corp. v. CLS Int’l)1 invalidated software patents related to mitigating settlement risk. Relying on the now-infamous Section 1012, the Court held that use of an intermediary to mitigate settlement risk in a financial exchange is a fundamental economic practice directed to a patent-ineligible abstract idea.

Well, the US has fallen in line with the rest of the world, except China. In fact, after Alice it’s even harder to get (or enforce) software patents in the US than it is in Europe (EPs/EPO).

Vaish Associates Advocates, in the meantime, pushes the illusion that software patents are possible and worth pursuing both in India and the US (both are hostile towards these in court). There are virtually no software patents in India. To quote their article:

Software Patenting In India And USA

[..]

In this paper, we would be discussing the various case laws which have determined the conditions for patentability of software in Indian subcontinent and USA.

So, what is software patent? It is a patent on any performance of a computer realized by means of a computer program. India was the first country in the world to provide statutory protection to the software through the Copyright Act, but from then, the journey has been quite slow as in this era of internet, there is a need for more protection to the software, and we are still an old-school regarding the same. The effect of ‘Make in India Campaign, hackathons, software innovations and the youth participation is severely mitigated as India is not able to provide protection, software deserves. About 60% of all make in India is happening through the software. IBM registered 8088 patents in a year, and 30% of which were filed in the name of Indian inventors. The need of the hour is dire and extreme to recognize the software not merely a literary work but as something which is invented on a routine basis.

If they are trying to insinuate that software patents are worth pursuing both in India and the US, then they are liars, not lawyers. Maybe that’s just what they are.

04.22.18

Shelston IP Keeps Pressuring IP Australia to Allow Software Patents and Harm Software Development

Posted in Australia, Patents at 4:49 am by Dr. Roy Schestowitz

Grant Shoebridge wants what’s good for Grant Shoebridge, not for Australia

Grant Shoebridge

Summary: Shelston IP wants exactly the opposite of what’s good for Australia; it just wants what’s good for itself, yet it habitually pretends to speak for a productive industry (nothing could be further from the truth)

THE corrupting influence of the patent ‘industry’ (notably law firms) is often mentioned here in relation to the USPTO. It also appears as though the patent ‘industry’ has leverage over Battistelli, which helps explain the EPO‘s suicidal (self-destructive) path. We’ll write about that later today.

“…we have a pretty good idea (and record) of who lobbies who, when, and what for.”Over the years we wrote about 200 short posts or long articles about patent policy ‘down under’, especially as it relates to software patents in New Zealand and in Australia (IPONZ and IP Australia, respectively). This means we have a pretty good idea (and record) of who lobbies who, when, and what for.

“Given the current substantial uncertainty that exists regarding how the proposed objects clause will be implemented, this draft legislation will be keenly anticipated and Shelston IP will keep you advised of developments.”
      –Grant Shoebridge
Over the past few years we’ve seen Shelston IP pushing patent extremism and software patents ‘down under’ e.g. [1, 2, 3]. They weren’t quite so active until a few years ago. Nowadays they are lobbying IP Australia to become a patent maximalist (or a ‘patent-printing machine’) rather than a patent examination office, having noticed that the commission associated with productivity advised against software patents and policy adapted accordingly. Just before the weekend Grant Shoebridge from Shelston IP had another go at it:

In this first of two “patentable subject matter” articles, I will consider IP Australia’s proposals in relation to the introduction of an objects clause and its seemingly significant potential impact on Australia’s patent eligibility threshold.

[...]

The next stage in the introduction of an objects clause into the Australian Patent Act will be the preparation of an exposure draft of the legislative amendments together with a draft explanatory memorandum on the intended purpose and interpretation of the objects clause. Given the current substantial uncertainty that exists regarding how the proposed objects clause will be implemented, this draft legislation will be keenly anticipated and Shelston IP will keep you advised of developments.

Notice that last sentence; these people actually believe the law exists just to serve them and it’s for them to decide on. How arrogant an assumption. They don’t even produce anything.

What IP Australia needs to understand (and hopefully does already) is that firms like Shelston IP are foes of productivity; they derive power and income from litigation, disputes, threats of litigation, and escalating disputes. Whatever they suggest on the subject of patents is counterproductive to productivity. In a sense, one might as well just say that IP Australia needs to listen to what Shelston IP wants and then implement the exact opposite of what Shelston IP suggests.

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