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12.10.18

US Courts Make the United States’ Patent System Sane Again

Posted in America, Courtroom, Patents at 3:57 am by Dr. Roy Schestowitz

“The only patent that is valid is one which this Court has not been able to get its hands on.”

Supreme Court Justice Jackson

Summary: 35 U.S.C. § 101 (Section 101), the Patent Trial and Appeal Board (PTAB) and other factors are making the patent system in the US a lot more sane

THE U.S. Patent and Trademark Office and the courts aren’t the best of friends these days. The courts often disagree with the decisions of the Office. The higher courts also increasingly resist/anatagonise Office-friendly and trolls-friendly litigation venues. Consider TC Heartland and its application by lower courts.

“Seven Networks LLC on Friday urged the Federal Circuit not to reconsider a ruling that allowed a patent lawsuit it brought against Google LLC to remain” (in Texas), Matthew Bultman (Law360) wrote. Also from Bultman and colleagues we have this: “Verizon subsidiary Oath Holdings Inc. can defend a patent suit over advertisement technology in Delaware, a New York federal judge has ruled, following the Federal Circuit’s decision that the judge failed…”

“The higher courts also increasingly resist/anatagonise Office-friendly and trolls-friendly litigation venues.”Lawyers are trying to find creative new ways to pick courts/judges in patent cases. It’s not working for them. Well done, US courts and judges. When it comes to tackling the Cult of Patents at least. When I say “Cult of Patents” I don’t mean to suggest all patents are inherently evil. The same goes for religion. It’s when people take it to the extreme that the whole broth spoils and the system looks like rubbish. Here is more on this from Watchtroll and from Law360: “A Texas federal court has jurisdiction to hear whether several banks infringe a licensing company’s patents covering electronic banking procedures because the company sent demand letters to the institutions…”

There’s nothing such parasites won’t do to drag victims to patent courts that advertise their bias.

“It’s when people take it to the extreme that the whole broth spoils and the system looks like rubbish.”It has meanwhile been pointed out, e.g. in a couple tweets [1, 2] spotted by Florian Müller, that Makan Delrahim (former lobbyist, consistent with a pattern of corrupt officials) may be having yet more problems [1, 2].

“William Barr,” one said, “who may become the next attorney general, had a serious dispute with Makan Delrahim, the Justice Department’s top antitrust lawyer, implicitly accusing him and his deputy of lying about a meeting on the AT&T-Time Warner Merger https://www.washingtonpost.com/technology/2018/12/07/trumps-likely-pick-attorney-general-said-justice-departments-antitrust-chief-gave-inaccurate-account-meeting-with-time-warner/?utm_term=.964435282f54 …”

“Makan Delrahim just backed the Antitrust Division out of the 2013 agreement with the PTO on FRAND remedies,” said the other tweet, “apparently it now takes the position that you can get an injunction even if you’ve committed not to.”

The CCIA’s Josh Landau has meanwhile written a blog post about it. To quote:

This alone threatens to reduce U.S. competitiveness in standardized technologies. But Delrahim goes further, claiming that competitors will be subjected to new antitrust scrutiny for making reasonable commercial decisions about which standard-setting organizations (SSOs) to participate in.

For example, Delrahim threatens to sue companies that choose to avoid SSOs that are too favorable to patent holders. Participation in a standard-setting organization is voluntary.1 Stating that “competitors would come under scrutiny if they orchestrated a group boycott of an SSO with a patent policy that is unfavorable to their commercial interests,” Delrahim appears to suggest that DoJ will use its authority to investigate companies who don’t want to participate in standards that have unfavorable commercial terms and organize competing standards with better terms.

Separately, Landau wrote: “My sympathy for journalists grows in direct proportion to the number of Friday night emails I receive calling me “enemy of the people” for having the gall to post a summary of a paper showing evidence that NPEs don’t promote innovation.”

“There’s nothing such parasites won’t do to drag victims to patent courts that advertise their bias.”I received death wishes for criticising patent trolls. These people bully companies for a living, so why not bully their critics as well?

Landau (in his capacity as CCIA staff) cites the recent work of Colleen Chien and Jiun-Ying Wu on 35 U.S.C. § 101 and says “Increase In § 101 Rejections Due Almost Entirely To Rejected Business Methods” (there are other aspects we covered here, such as fewer people even bothering to sue with weak patents). To quote Landau:

Prof. Colleen Chien, along with her student Jiun-Ying Wu, recently published an analysis of the impact of § 101 on patent prosecution. While their analysis clarifies which art units are impacted by § 101 decisions like Alice and Mayo, the published article doesn’t clearly answer the question of how each art unit contributes to the overall impact on prosecution from § 101. Fortunately, thanks to Prof. Chien and Wu’s decision to publish the code used to derive their data from the Google Patents public dataset for BigQuery, it’s easy to answer that question.

And the answer isn’t surprising. Essentially the entire increase in rejections from § 101 is driven by increased rejections of business method patents.

Another group that combats patent maximalism is Unified Patents, whose CEO was recently interviewed. Watchtroll really, really does not like Unified Patents. This should mean that patent trolls hate Unified Patents. This means Unified Patents is technology’s friend. Here is what Watchtroll wrote 6 days ago: “On Tuesday, November 27th, the Patent Trial and Appeal Board (PTAB) issued a redacted version of a decision to institute an inter partes review (IPR) proceeding petitioned by Unified Patents to challenge the validity of patent claims that have been asserted in district court against at least one of Unified’s subscribing members. The PTAB panel of administrative patent judges (APJs) decided to institute the IPR despite the patent owners’ assertion that the petition should be denied because Unified didn’t identify all real parties in interest (RPIs) including members of Unified’s Content Zone.”

“Unified Patents does a valuable service, whose net effect is removal of bogus patents, using Sections 101-103 typically.”Yes, there’s no reason why Unified Patents, which lowers the costs of IPRs by sort of crowdfunding them, can be seen as ineligible a petitioner. PTAB agrees. Unified Patents does a valuable service, whose net effect is removal of bogus patents, using Sections 101-103 typically. Prior art, for example, has just been found for U.S. Patent 7,050,043. Bad news for this patent troll as the panel will tackle Proximity Sensors with an inter partes review (IPR):

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Hanhwe Kim, who received a cash prize of $1000 for his prior art submission for U.S. Patent 7,050,043, owned by Proximity Sensors of Texas, LLC, a well-known NPE. The ’043 patent, directed toward a proximity sensor, has been asserted against several companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.

And another patent troll, this time E-Credit Express, was mentioned by Unified Patents on the same day. Prior art found again:

Unified is pleased to announce the PATROLL crowdsourcing contest winner, Hanhwe Kim, who received a cash prize of $1,500 for his prior art submission for U.S. Patent 8,909,551, owned by E-Credit Express, LLC, an NPE. The ’551 patent, directed toward an electronic credit and loan processing method, has been asserted against several companies in district court litigation. To help the industry fight bad patents, we have published the winning prior art below.

We would also like to thank the dozens of other high-quality submissions that were made on this patent. The ongoing contests are open to anyone, and include tens of thousands of dollars in rewards available for helping the industry to challenge NPE patents of questionable validity by finding and submitting prior art in the contests. Visit PATROLL today to learn more about how to participate.

People can now win $1000 by helping an interception of the patent weaponised by Kojicast, another patent troll. As Unified Patents put it the following day:

On December 7, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9749380 owned and asserted by Kojicast, LLC (an NPE). The ’380 patent, generally related to a media streaming method and system, has been asserted against Dailymotion S.A. in the Texas Eastern District Court.

A lot of these are software patents, which could probably also be tackled by Section 101. The legal angle depends on the petitioner’s attorney.

“People can now win $1000 by helping an interception of the patent weaponised by Kojicast, another patent troll.”And speaking of software patents, TechDirt now compares them to pot patents with plenty of prior art.

“This is actually quite reminiscent of the mess that came with software patents,” Benjamin Henrion wrote, citing “What Do Pot And Software Have In Common? Stupid Patent Thickets Based On A Lack Of Patented Prior Art” (originally published in TechDirt and soon thereafter reposted by Above The Law). It’s about the time the Federal Circuit (CAFC) opened the door to software patents (before today’s 35 U.S.C. § 101):

Basically, there hasn’t been that much official prior art because pot was considered illegal for so many years, and no one was rushing to patent anything. And, of course, patent examiners are somewhat limited in what they’re set up to research regarding prior art, and they often rely on earlier patents and scientific articles as the basis for prior art searches. And, with pot, there aren’t so many of those.

Of course, this is actually quite reminiscent of the mess that came with software patents. For a long time, most people didn’t consider most software to be patentable (this is not entirely accurate, as there are software patents going back many decades, but many people considered it limited to a few special cases of software). However, in 1998, we got the State St. Bank case, in which the Court of Appeals for the Federal Circuit basically threw open the doors on patenting almost any software. And those doors remained completely wide open until the Alice v. CLS Bank decision in 2014 (which hasn’t totally cleaned up the mess of the State Street ruling, but has certainly helped dial back the insanity).

But, for nearly two decades after the State Street ruling, the US Patent Office was patenting software willy nilly — often despite much of it having tons of prior art or being completely obvious. A big part of the problem was that examiners, again, focused on mainly looking at earlier patents and scientific journals for evidence of prior art. But because so many people didn’t think that most software was patentable, there were very few patents to look at, and it’s pretty rare for anyone to write up the details of software in scientific journals (they just make the damn software).

Days ago there was this report titled “Higher Law: Bay State Marijuana Shops Open | Tracking Pot Patent Cases | Plus: Who Got the Work” (litigation work).

“The patent system may be out of control, but there’s still hope that PTAB and the courts above it will correct things.”Welcome the parasites of pot. Who will benefit from people getting high? Yes, the lawyers (they wanted patents everything, making themselves ‘necessary’).

The patent system may be out of control, but there’s still hope that PTAB and the courts above it will correct things. What about European courts?

Yesterday we said there should be no patents on plants (like pot) and people now point out that “On 7 December 2018, the EPO posted a report on its website relating to the decision” (to allow patents on plants at the EPO, even in defiance of the EPC). The next comment speaks of the UPC (which is likely dead): “You seem to forget that the EPC has 38 member states and the EU presently 28 and soon only 27. You might thus have a long time to wait until the EU takes control of the EPO on the pretext of harmony. If the EU could have taken over the EPO, we would not have to do with the UPC, but EPLA would probably be in place now. However, Opinion C 1/09 came in between. I do not think that even the children of my grandchildren will see the EU take the control of the EPO!”

Given the direction the EPO has taken, it might not even survive much longer. Patent maximalism can doom offices (presumption of validity gone).

12.09.18

Good News: US Supreme Court Rejects Efforts to Revisit Alice, Most Software Patents to Remain Worthless

Posted in America, Courtroom, Patents at 11:46 pm by Dr. Roy Schestowitz

Summary: 35 U.S.C. § 101 will likely remain in tact for a long time to come; courts have come to grips with the status quo, as even the Federal Circuit approves the large majority of invalidations by the Patent Trial and Appeal Board’s (PTAB) panels, initiated by inter partes reviews (IPRs)

2017 and 2018 have been very good years. Irrespective of what the U.S. Patent and Trademark Office grants as patents (more on that in a separate post), courts do a good job. They’re a lot tougher than before.

“Irrespective of what the U.S. Patent and Trademark Office grants as patents (more on that in a separate post), courts do a good job.”As Karl Auerbach put it some days ago: “The supreme court and the IP bar have gotten a lot smarter about software, so they are far more able to recognize that a huge portion of software patents are simply old ideas rewrapped as code and are thus not eligible for patent protection..”

Here’s the full comment (a reply I received):

I do not accept the mantra that “software is math”. Sure, computers operate through the application of the laws of physics, via the emergent properties of electronics and electro-mechanical devices. But so do procedures in chemistry. The act of using a hammer to pound a nail is ultimately “mathematical” in the sense that it is an expression of the laws of force and mass and velocity – all of which are usually expressed in mathematical form. That would make a patent on a novel and non-obvious use of a hammer and nails to be unpatentable.

Some software is, indeed, used to computer mathematical expressions. So are pencils. And pencils are not unpatentable because they are mathematics. (Pencils are unpatentable because they or no longer novel or non-obvious.)

The analogy with gears is to counter the argument that software has no physical reality – which is not true given that once it is reduced to its basic form it consists of charges in electronic circuits that, when combined with electrical time pulses, turns into a very physical machine – but with electrical charges interacting rather then gears meshing.

The main problem that has existed with software patents is that they fail the required test of being non-intuitive to someone practiced in the art of computer programming. The US patent office for decades refused to hire computer people, so it made itself intentionally stupid and thus thought that every chunk of software was non-intuitive. The head of the USPTO during much of that time was a total jerk – he even was booed by a bunch of IP lawyers at a meeting I attended.

The supreme court and the IP bar have gotten a lot smarter about software, so they are far more able to recognize that a huge portion of software patents are simply old ideas rewrapped as code and are thus not eligible for patent protection. But no court has said that a patent, just because it is expressed in the form of a computer programs, is by virtue of that expression, not patentable.

The way things stand, technology companies gained leverage over law firms. It’s still not ideal. As Benjamin Henrion put it the other day in light of this report (“Google, Amazon Invited to Talk Patent Eligibility With Lawmakers”): “Software developers and small companies not invited to discuss software patents, only large companies and patent lawyers…”

The above report comes from a lawyer’s section, too. “If you have no money,” I told Henrion, “then your opinion does not matter. You’re disposable “workforce”…”

The above talk, however, did not deal with courts directly. They’re separate. So what do courts say? The decision to reassess Helsinn v Teva (several days ago) was put in our daily links as it’s pretty irrelevant to us (it’s not at all about patent scope/quality). As proponents of patents on life put it, “Supreme Court Hears Oral Argument in Helsinn v. Teva” (mentioned here before in passing).

“The way things stand, technology companies gained leverage over law firms.”So SCOTUS will look at Helsinn v Teva, but as expected Carl M. Burnett v Panasonic Corporation goes nowhere. It’s another small victory for us programmers who’ve long campaigned against software patents and now have 35 U.S.C. § 101. The Office cannot bully judges. It cannot force Justices (at SCOTUS) to challenge 35 U.S.C. § 101. Days ago the USPTO published yet another talk of Iancu. He can moan about 35 U.S.C. § 101 all he wants, but courts won’t care.

“Another one bites the Alice dust,” wrote this patent maximalist from Watchtroll, linking to an opinionated Watchtroll report about last Monday’s decision:

On Monday, December 3rd, the U.S. Supreme Court denied a petition for writ of certiorari in Carl M. Burnett v. Panasonic Corporation, declining to take up the case on appeal from the Court of Appeals for the Federal Circuit. This is now the latest case involving questions of patent-eligibility for an invention under 35 U.S.C. § 101 declined by the nation’s highest court. In this case, however, the Supreme Court hasn’t addressed the patentability of the relevant subject matter, namely electronic data and electromagnetic analog and digital signals, since 1853.

SCOTUS has also just rejected SSL Services v Cisco and it’s hilarious to see the response from patent extremists who loathe PTAB and love software patents. They’re losing their minds as courts gradually restore/impose sanity on the patent system. Here is what Watchtroll said: “On Monday, November 19th, the U.S. Supreme Court issued a list of orders regarding pending cases where the Court refused to take the appeal. The Supreme Court on that day denied the petition for writ of certiorari to take up SSL Services, LLC v. Cisco Systems, Inc. on appeal from the Federal Circuit. In denying certiorari, the Supreme Court refused to answer whether the Patent Trial and Appeal Board (PTAB) erred in instituting an inter partes review (IPR) proceeding in the face of federal statute barring institution of an IPR based on similar arguments and prior art raised in a previous validity challenge.”

“At the end of the day, when it all boils down to Alice, these patents are still unlikely to withstand judges’ scrutiny.”Watchtroll can be hilarious in the sense that it has nothing left but judge-bashing and as we’ll mention again later, the founder and editor steps down. A month later these people still bring up Ancora v HTC. They’re living in the past, cherry-picking rare case outcomes in desperate efforts to somehow revive software patents in US courts. Watchtroll suggests adding “Technical Solutions” and King & Wood Mallesons’s Veg Tran and Esme Wong argue you should say “an improvement in the computer”; anything to hopelessly fool examiners and judges into software patents?

At the end of the day, when it all boils down to Alice, these patents are still unlikely to withstand judges’ scrutiny. That’s just the way it is; there’s no point pretending that adding some catchphrases will help as if it’s all about words. It’s about the underlying claims, not semantics.

“The bottom line is, software patents are bygones; even the lawyers know it, but they still try to attract applicants, i.e. money/legal bills.”James Fussell, Nikko Quevada and Vincent Violago, three people who do ‘patents’ for a living (nothing else actually) say “Alice Must Be Revisited In View Of Emerging Technologies” (published 5 days ago); they just worry they’ll become unemployed as they will need to find a real job. They start their articles with a bunch of meaningless buzzwords: “The increasing convergence of artificial intelligence, the internet of things, robotics and other emerging technologies are expected to generate various novel legal issues that courts will soon have to grapple with…”

Yes, “artificial intelligence” or “internet [sic] of things” and so on. Why not add “cloud” and “smart” and other nonsense?

The bottom line is, software patents are bygones; even the lawyers know it, but they still try to attract applicants, i.e. money/legal bills.

12.06.18

The European Patent Office Remains a Lawless Place Where Judges Are Afraid of the Banker in Chief

Posted in Courtroom, Europe, Law, Patents at 8:34 am by Dr. Roy Schestowitz

Related: Ingve Björn Stjerna Has Just Warned That If Team UPC and the European Patent Office Rigged the Proceedings of the German Constitutional Court, Consequences Would be Significant

Fair trial

Summary: With the former banker Campinos replacing the politician Battistelli and seeking to have far more powers it would be insane for the German Constitutional Court to ever allow anything remotely like the UPC; sites that are sponsored by Team UPC, however, try to influence outcomes, pushing patent maximalism and diminishing the role of patent judges

THE underlying issues at the European Patent Office (EPO) have not been addressed at all. They just rotated the face, swapping one Frenchman with another, António Campinos. In a 20-year period it's expected that almost 17 years will be French-led at the EPO. How ridiculous is that? A reader of ours calls it "La famiglia".

“It’s almost as though Wingrove just writes whatever Bristows’ main office tells him to write and the headline says “Constitutional Court ruling rumours spread” as if this “spread” somehow means there’s truth to it; for all we can tell, the only ones “spreading” it are propaganda sites like the one Wingrove writes for.”We are well aware that the Constitutional Court in Germany (FCC) is assessing the situation. It isn’t helping that UPC propaganda sites (connected to the EPO and Team UPC) are perpetuating falsehoods. Patrick Wingrove is the latest to do this in a patent propaganda site which keeps spreading false rumours that are baseless and created out of thin air by Team UPC. It’s really bad, but we suppose it says a lot about their journalistic standards. They have none; they just have sponsors and an agenda to sell. “Talk is building of a decision from the German Constitutional Court before year-end,” Wingrove wrote, “the UK House of Lords heard evidence about Brexit’s effect, and the Italian Council of Ministers approved national legislation to adopt the Unitary Patent Regulation and the UPCA…”

What is the source for all this? Team UPC. It’s almost as though Wingrove just writes whatever Bristows’ main office tells him to write and the headline says “Constitutional Court ruling rumours spread” as if this “spread” somehow means there’s truth to it; for all we can tell, the only ones “spreading” it are propaganda sites like the one Wingrove writes for. It’s wishful thinking and lobbying; it’s totally baseless and already refuted by the court.

There are many aspects to the complaint, presumably 4 main ones; one of the concerns is that UPC judges are controlled by (re)appointment policy, leaving them subservient to crooked circles like Battistelli’s. It’s not hard to see what Battistelli thinks of justice and judges. There’s ample documentation of that. It’s almost 2019 and the EPO Boards of Appeal still do not have independence; Campinos has changed nothing after corrupt Battistelli illegally attacked judges (the latest update is rather grim, claiming that Judge Corcoran was admitted into a psychiatric hospital).

Nobody wants to go through what Corcoran experienced, so nowadays the boards may seem spineless and subservient to those it rules on (the Office). Kluwer Patent Blog, which recently mentioned Corcoran’s condition, said yesterday that a “EPO Board of Appeal decides plants can be patentable after all” (ridiculous) and to quote:

Those who thought that the battle on patenting of plants had gotten a final blow by the amendment of the European Patent Convention last year and the approach of the EPO examination following that (see this post), have not counted on the EPO Boards of Appeal.

The discussion on the patentability of plants has a long history within the EPO, which culminated in the amendment of Rules 27 and 28 EPC by the Administrative Council entering into force on 1 July 2017 (see this post). This amendment followed a Notice of the European Commission of 3 November 2016, indicating that the Biotech Directive 98/44 should have been interpreted as that plants obtained by essentially biological processes are not patentable.

There is meanwhile another controversy brewing; Doctors Without Borders have just issued the following statement:

Six organizations appealed today the European Patent Office’s September decision to uphold US pharmaceutical corporation Gilead Science’s patent on the key hepatitis C drug sofosbuvir. The appeal—filed by Médecins du Monde (MdM), Doctors Without Borders/Médecins Sans Frontières (MSF), AIDES (France), Access to Medicines Ireland, Praksis (Greece), and Salud por Derecho (Spain)—states that the European Patent Office (EPO) should revoke Gilead’s patent because it does not meet the requirements to be a patentable invention from a legal or scientific perspective.

The appeal comes exactly five years after sofosbuvir was first approved for use in the US, where Gilead launched the drug at $1,000 per pill, or $84,000 for a 12-week treatment course. The corporation has made more than $58 billion from sales of the drug and its combinations in the last five years.

Catherine Saez (Intellectual Property Watch) soon followed with this coverage:

Six organisations, including Médecins Sans Frontières (MSF, Doctors Without Borders), today appealed a European Patent Office decision to uphold Gilead Science’s patent on hepatitis C drug sofosbuvir.

In September, the European Patent Office (EPO) upheld Gilead’s patent on sofosbuvir in an amended form (IPW, Public Health, 13 September 2018).

MSF, along with Médecins du Monde (MdM), AIDES (France), Access to Medicines Ireland, Praksis (Greece) and Salud por Derecho (Spain), filed an appeal requesting that the EPO revoke Gilead’s patent. They argue it lacks the patentability requirement “from a legal or scientific perspective,” according to an MSF press release. The filed appeal document was not available at press time.

Intellectual Property Watch has also just published “OECD Report Presents Policies To Balance Innovation With Access To Medicines” and they mean patents rather than innovation (they try to make it synonymous for propaganda’s sake or self-serving purposes). To quote:

The Organisation for Economic Cooperation and Development (OECD) has released a new report that presents policy options for countries to strike a better balance between promoting financial incentives for pharmaceutical innovation and ensuring affordable access to medicines. Finding this balance, the report explains, will be essential for ensuring the sustainability of health systems.

Where have the board been when it comes to stopping abstract patents on mathematics and actually enforcing the EPC? The EPO has just finished an event that promotes software patents in Europe and all that Intellectual Property Watch wrote about it was this puff piece, based on this misleading outline (warning: epo.org link) that the EPO published yesterday. To quote:

The number of blockchain inventions is mushrooming, and the European Patent Office wants to ensure it handles the increasing patent applications consistently, officials said at a 4 December conference that brought together around 350 patent examiners and practitioners.

Only them? Well, the EPO is no longer shy to break the law and to promote software patents provided it uses surrogate names and terms. That’s a problem, but who’s going to stop this when one President controls everything, attacking judges and even turning his boss into his assistant in a few weeks? As some insiders rightly claimed, Campinos now makes himself even more powerful than Battistelli and if the FCC was ever to approve the UPCA, things would go truly mental, giving a corrupt Office power over courts in the whole of Europe.

12.03.18

The Patent Trial and Appeal Board (PTAB) Not Falling for Attempts to Prevent It From Instituting Challenges

Posted in Courtroom, Law, Patents at 6:21 pm by Dr. Roy Schestowitz

Summary: In the face of patent maximalists’ endless efforts to derail patent quality the tribunal keeps calm and carries on smashing bad patents

SUPPORTED by SCOTUS and the Federal Circuit, inter partes reviews (IPRs) at the Patent Trial and Appeal Board (PTAB) have long (years) applied 35 U.S.C. § 101 to invalidate software patents erroneously granted by the Patent and Trademark Office (USPTO). PTAB combined with Alice has been a very possible emergence and development for software developers (programmers/coders), as opposed to patent trolls.

“Attempts to undermine IPRs so as to save fake patents have not been successful.”As the week begins we already see Janal Kalis mining USPTO documents, hoping to find some positive news. All he found was this exceptional case wherein “The PTAB Reversed an examiner’s 101 Rejection of Claims for inventory management in a patent application owned by Baker Hughes: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017006294-11-13-2018-1 …”

We can assume that in all other new cases PTAB affirmed the examiners’ rejections or ‘overturned’ (reversed) an acceptance.

Understandably, those who are accustomed to making a living from lawsuits aren’t happy. PTAB thwarts frivolous lawsuits.

Consider this new tweet which says: “Do [Section] “101 panels” exist? Director of TC 3600 Business Methods – Tariq Hafiz – provides priceless insights for effectively dealing with the @USPTO…”

So I told him that the term “101 panels” is as meaningless a concept as “don’t spit chewing gum on the pavement” department. Section 101 is the law and patents on “Business Methods” are bunk, no matter what the USPTO says. It’s down to the courts, eventually. They have the final say, provided one can afford the long and arduous process.

Authored by Robert Jain last week was this PTAB headsup regarding Unified Patents and RPX (there’s commonality in how they file IPRs — a subject we covered several times before). Attempts to undermine IPRs so as to save fake patents have not been successful. As Jain explained:

On October 19 the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in Unified Patents Inc. v. Realtime Adaptive Streaming, LLC, IPR2018-00883, rejecting Realtime’s argument that Unified’s members were unnamed real-parties in interest. In its first Unified decision discussing Applications in Internet Time, LLC v. RPX (AIT), the Board rejected arguments that Unified’s Content Zone members were unnamed RPIs, finding that would overextend the AIT analysis and the common law…

Unified Patents is again offering money to help invalidate the patent of the patent troll Telebrands. To quote:

On November 29, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9546775 which has been asserted on multiple occasions by Telebrands Corp. (an NPE). The ’775 patent, generally related to a decorative laser light system, has been asserted in 7 district court cases.

Any patent troll that can be squashed by PTAB won’t be missed (disarming them is enough as all they have is patents and without patents they cannot sue). A few weeks ago, based on this other post, Unified Patents turned to the USPTO for “registered [...] service mark Unified Patents® under Registration No. 5,605,486, recognizing that Unified Patents® has earned industry goodwill and developed a reputation distinguishable and protectable in the marketplace.”

We have long been supportive of Unified Patents, having recognised that the majority of what they do has a positive effect on the ‘innovation terrain’; they remove a lot of patent trolls from the ‘zone’.

12.02.18

The Patent Microcosm Hopes That the Federal Circuit Will Get ‘Tired’ of Rejecting Software Patents

Posted in America, Courtroom, Patents at 5:53 pm by Dr. Roy Schestowitz

Last year: PTAB and CAFC Crush Patents on Business Methods and Software, So Dennis Crouch Tries to Slow Them Down

Summary: Trolls-friendly sites aren’t tolerating this court’s habit of saying “no” to software patents; the Chief Judge meanwhile acknowledges that they’re being overrun by a growing number of cases/appeals

IN SIGHT or in view of the declining value of software patents in the US (no matter if the Patent and Trademark Office grants these), patent maximalists have already resorted to SCOTUS bashing, Patent Trial and Appeal Board (PTAB) bashing, and earlier this year Court of Appeals for the Federal Circuit (CAFC) bashing. It’s pretty bad and it alienates judges. Imagine being Judge Mayer and then seeing this unfair headline from Watchtroll (after Mayer rejected/thwarted a software patents lawsuit of Intellectual Ventures):

Watchtroll

Earlier today patent maximalists from Patent Docs advertised the Federal Circuit Bar Association’s (FCBA) upcoming “webcast” about the Federal Circuit, which they have nothing to do with [1, 2] (misleading name). It’s just another one of those stacked panels.

“It’s pretty bad and it alienates judges.”Stephen Yelderman, a Professor of Law at the University of Notre Dame Law School, has meanwhile released this prior art analysis (based on measurable rates). Authored quite recently and dealing with 35 U.S.C. § 103, this relates to something we published earlier today. Dennis Crouch added (also regarding U.S.C. § 103): “One ongoing debate among patent attorneys is the proper abbreviation of the statutory phrases “person having ordinary skill in the art,” 35 U.S.C. 103, and “person skilled in the art,” 35 U.S.C. 112(a). [...] I prefer PHOSITA (Person Having Ordinary Skill In The Art) [...] The chart below shows that the PTAB’s favorite is POSITA with 68% of the cases having abbreviations. Still, most PTAB cases just spell out the rule without any abbreviation at all.”

Kevin Noonan from Patent Docs has meanwhile dealt with the subject (35 U.S.C. § 103) by saying that CAFC’s Chief Judge Sharon Prost expressed “dismay over the number of patent cases coming to the Court.” They should take it back to the lower court/tribunal, as they did in the following case (Tris Pharma, Inc. v. Actavis Laboratories FL, Inc.):

A certain amount of comment has recently been evinced from the patent bar by the voicing from several members of the Federal Circuit, including the Chief Judge, of their dismay over the number of patent cases coming to the Court. In particular, this increase in the patent case census in Court is due in not some small degree to the number of cases arising from decisions by the Patent Trial and Appeal Board (PTAB) that the Court is tasked with reviewing regarding the validity vel non of patents from the various post-grant review proceedings (the largest number of which arise from inter partes reviews, IPRs). Perhaps in reaction to its dismay, the Court in several cases has remanded PTAB decisions based on failure of the Board to properly support their decisions to be amenable to appellate review; see, for example, Securus Tech v. Global Tel*Link (Fed. Cir. 2017) (IPR2014-01278) (Pat. No. 7,860,222); Ultratec v. CaptionCall and Matal (Fed. Cir. 2017). This basis for eschewing review has been much more rare in district court appeals but arose last week in the Court’s decision in Tris Pharma Inc. v. Actavis Laboratories FL, Inc.

[...]

The District Court found the asserted claims of U.S. Patent Nos. 8,465,765 (’765 patent), 8,563,033 (’033 patent), 8,778,390 (’390 patent), 8,956,649 (’649 patent), and 9,040,083 (’083 patent) were invalid as being obvious under 35 U.S.C. § 103.

[...]

Based on all these deficiencies the Federal Circuit remanded to the District Court for “further fact-finding.” Whether an increased frequency of these types of decisions based on Rule 52(a) in appeals from District Court opinions by a beleaguered Federal Circuit remains to be seen.

Watchtroll too has just touched 35 U.S.C. § 103 in relation to Judge Reyna, whom Crouch mocked earlier this year (and later apologised for). “Writing for the panel,” it said, “Judge Reyna explained that the Board did not err in construing the relevant claim terms. Because substantial evidence supported the Board’s decision, the Federal Circuit affirmed.”

“So long story short, this court may be overworked.”It then mentioned Chief Judge Sharon Prost’s dissent in another case (covered the following day). “On Friday, November 16th,” it said, “the Court of Appeals for the Federal Circuit issued a nonprecedential opinion in Amazon.com, Inc. v. ZitoVault, LLC, affirming a decision by the Patent Trial and Appeal Board (PTAB) that e-commerce giant Amazon failed to prove a patent owned by security solutions provider ZitoVault was unpatentable. The Federal Circuit majority of Circuit Judges Kara Stoll and Kathleen O’Malley disagreed with Amazon’s that the PTAB erred in its claim construction. Dissenting, Chief Judge Sharon Prost wrote that she believed the PTAB’s analysis of a specific claim term was flawed, and she would have vacated the PTAB decision and remanded the case for further consideration.”

So long story short, this court may be overworked. It’s a strain. Prost’s track record has been largely positive in our view and we hope she’ll be strong enough to endure the heckling.

35 U.S.C. § 101 Continues to Crush Software Patents and Even Microsoft Joins ‘the Fun’

Posted in America, Courtroom, Microsoft, OIN, Patents at 4:32 pm by Dr. Roy Schestowitz

Software patents are truly a threat to Free/Open Source software

“Steve Jobs threatened to sue me, too. [and also] Bill Gates and Steve Ballmer. They’d flown in over a weekend to meet with Scott McNealy. [...] Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.” [...] Bill was delivering a slightly more sophisticated variant of the threat Steve had made, but he had a different solution in mind. “We’re happy to get you under license.” That was code for “We’ll go away if you pay us a royalty for every download” – the digital version of a protection racket.”

Jonathan I. Schwartz, Sun

Summary: The Court of Appeals for the Federal Circuit (CAFC) and even courts below it continue to throw out software patents or send them back to PTAB and lower courts; there is virtually nothing for patent maximalists to celebrate any longer

AS promised earlier today, here’s a quick outline of the smashing of software patents, erroneously granted by the U.S. Patent and Trademark Office (USPTO) only to be squashed in district (lower) courts, the higher court (Federal Circuit, CAFC) and the Patent Trial and Appeal Board (PTAB), where inter partes reviews (IPRs) are undertaken.

As usual, it’s hard to find even a single example of a software patent withstanding scrutiny at a higher court (CAFC or SCOTUS). Those are rare exceptions — ones that patent extremists would tout for many months if not years.

“An appeal would likely have this decision overturned because of the district’s notoriety.”Looking at the blog dedicated to advocacy of software patents (it’s a law firm’s blog), Mark St. Amour looks downwards to the notorious Eastern District of Texas for examples — however rare — of software patents finding feet (until CAFC throws them out if defendants can afford justice). He found this: “In IDB Ventures, LLC v. Charlotte Russe Holdings, Inc. (2:17-CV-660-WCB-RSP), the Eastern District of Texas highlighted the effectiveness of showing that a patent claim is directed to a specific improvement to computer functionally for overcoming a challenge based on 35 U.S.C. § 101.”

An appeal would likely have this decision overturned because of the district’s notoriety. Charles Bieneman, a colleague of Amour apparently, meanwhile admits that gifting (or a gift certificate) is not an “invention” just because you do it “on a computer” or “over the Internet”; why does the USPTO grant such laughable software patents in the first place?

To quote Bieneman (this is in Delaware, not Texas):

Patent claims directed to electronic gift certificates are not patent-eligible under 35 U.S.C. § 101 and the Alice/Mayo test, according to a US magistrate judge’s recommendation to grant a Rule 12(b)(6) motion to dismiss. Coqui Technologies, LLC v. Gyft, Inc., No. 17-777-CFC-SRF (D. Del. Nov. 16, 2018). The court found that claims of U.S. Patent No. 7,580,864, entitled “Method for circulating an electronic gift certificate in online and offline system,” were “directed to the abstract idea of selling, gifting, and using electronic gift certificates” without an additional inventive concept.

Another new pick/highlight comes from the District in California, which finds software patents pertaining to “User Interface Features Not Patent-Eligible,” according to Mike McCandlish. Thanks to 35 U.S.C. § 101, as usual…

Finding a lack of technical innovation, a court held claims for three features for a user-vehicle interface to be directed to patent-ineligible abstract ideas under the Mayo/Alice test and 35 U.S.C. § 101. Thunder Power New Energy Vehicle Development Co. Ltd. v. Byton North America Corp., No. 18-cv-03115-JST (N.D. Ca., Oct. 31, 2018).

Plaintiff, Thunder Power, alleged infringement by Defendant Byton of claims of Patent Nos. 9,547,373, 9,563,329, and 9,561,724. Byton moved to dismiss, contending that the asserted claims failed to recite patent-eligible subject matter under 35 U.S.C. § 101. The court granted the motion to dismiss.

Did Watchtroll find anything new that it can trumpet and shout about? No, not really. It returned to a month-old case, Ancora Techs. v. HTC Am., Inc.

The firm behind the outcome is still celebrating in paid articles and seeing how Watchtroll is still falling back on the HTC case (old news that it covered several times before) is rather revealing. There has been nothing for them to brag about for a very long time. “The Federal Circuit,” they said, “recently [sic] reversed the Western District of Washington’s grant of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure where the district court held that the claimed subject matter was ineligible for patenting under 35 U.S.C. § 101.”

“Did Watchtroll find anything new that it can trumpet and shout about? No, not really.”They say “recently” about something roughly a month old. They find it noteworthy because it’s a CAFC case, but Watchtroll is begrudgingly coming to accept that the high court, CAFC, is even stricter than PTAB when it comes to software patents as software patents almost always come there just to be thrown away. As Steve Brachmann put it a few days ago, “Federal Circuit Vacates PTAB Decision That Video Messaging Patent Claims Were Nonobvious” (most patent maximalists just tried to ignore it as it doesn’t suit their agenda).

Funnily enough, Rachel Elsby, Rubén Muñoz and Dorian Ojemen (Akin Gump Strauss Hauer & Feld LLP) would have us believe that CAFC gives or offers “tips” but that’s actually shameless self-promotion from them. We spotted this earlier today and our only comment is amusement. “On Wednesday, November 14th,” they argued, “the Court of Appeals for the Federal Circuit issued a nonprecedential decision in WhatsApp, Inc. v. TriPlay, Inc., which vacated a final written decision terminating an inter partes review (IPR) proceeding and remanded the case back to the Patent Trial and Appeal Board (PTAB).”

Wow. So basically it’s back to PTAB. What a ‘victory’…

CAFC very much insists that software patents are bunk and void. Here’s a new example titled “Fed. Circ. Won’t Reconsider Nixing Robotics IP Under Alice” (Section 101 basically).

“CAFC very much insists that software patents are bunk and void.”“The Federal Circuit has refused to reconsider its September ruling that parts of four robotics patents asserted against Invensys Systems Inc. and other automation companies are invalid,” Law360′s Matthew Bultman wrote. His colleague Tiffany Hu wrote that “Microsoft scored a win Tuesday when the Patent Trial and Appeal Board invalidated a technology company’s patent covering a way to attach conversation point reminders for mobile contacts…”

When Microsoft doesn’t blackmail the competition using software patents it is trying to invalidate others’. Precious.

Speaking of Microsoft’s patents, OIN has just recalled Microsoft’s history when it comes to such patents and the Irish media covered it as follows some days ago:

“OIN was conceptualized about 15 years ago largely in response to some activities that Microsoft was involved in. Microsoft funded litigation by a company called SCO against Red Hat, IBM and Suse. While these three companies were sued for violations of copyrights, the litigation triggered a concern around broader IP risks.

There was a belief that patents could be used to slow or stall the progress of Linux. The rhetoric from Balmer and Gates historically had been very negative about Linux being a ‘cancer’ and that it would be eradicated. It was for hobbyists. It would never be used for mission-critical applications. It wouldn’t scale. All the things ironically that IBM said against personal computing 20/25 years before. It was eerily similar. It’s what happens when you control the market and can’t make sense of what you see so you retreat to fear, you retrench to control.”

Reuters’ Jan Wolfe, who routinely covers patent matters, took note of another defeat for notorious patents. CAFC has gutted fake patents of a patent troll from Canada (WiLAN). To quote:

A federal appeals court on Wednesday said it would not reconsider an earlier decision that likely doomed patent litigation cases the licensing firm WiLAN Inc brought against industrial automation companies Rockwell Automation Inc, Schneider Electric SE and the Emerson Electric Company.

Joe Mullin (EFF) has meanwhile named and shamed some more fake patents granted by the USPTO even though software patents are bogus, worthless, and harm society, science etc. This is the latest “Stupid Patent of the Month”:

In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there’s no room for error.

The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as “formal verification.” But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.

Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.

Claim 1 of the patent describes creating mathematical “axioms”—formal mathematical statements—that describe a computerized trading forum. The patented method then describes analyzing, with a “computer assessment system … the mathematical axioms that describe the operation of the trading forum.” In other words, the patent describes using formal proofs to check for bugs in a “computerized trading forum.” It’s formal verification—just applied to the financial services industry.

Of course, Aesthetic Integration didn’t invent formal verification, nor did the company invent the idea of software powering a “trading forum.” The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.

[...]

Ultimately, the ’010 patent reflects a broader problem with Patent Office’s failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn’t—especially when a patent owner fills its application with obscure language and “patentese.” The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.

Perhaps one day the USPTO will stop issuing such patents. Patent quality is very important, more so than revenue of the Office.

“In a better world there would be far fewer patents, albeit ones that are strong, solid, and defensible based on public interest and scientific merit (as opposed to law firms’ and Office revenue).”Michael Risch has just cited this relatively new paper from Christopher Anthony Cotropia (University of Richmond’s School of Law) and David L. Schwartz (Northwestern University’s Pritzker School of Law), introducing it as “Patents Used in Patent Office Rejections as Indicators of Value” and remarking:

The quest for an objective measure of patent quality continues. Scholars have attempted many, many ways to calculate such value, including citations, maintenance fee payments, number of claims, length of claims, and so forth. As each new data source has become available, more creative ways of measuring value have been developed (and old ways of measuring value have been validated/questioned).

From the abstract of the corresponding paper:

The economic literature emphasizes the importance of patent citations, particularly forward citations, as an indicator of a cited patent’s value. Studies have refined which forward citations are better indicators of value, focusing on examiner citations for example. We test a metric that arguably is closer tied to private value—the substantive use of a patent by an examiner in a patent office rejection of another pending patent application. This paper assesses how patents used in 102 and 103 rejections relate to common measures of private value—specifically patent renewal, the assertion of a patent in litigation, and the number of patent claims. We examine rejection data from U.S. patent applications pending from 2008 to 2017 and then link value data to rejection citations to patents issued from 1999 to 2007. Our findings show that rejection patents are independently, positively correlated with many of the value measurements above and beyond forward citations and examiner citations.

It is interesting that they study Section 102 and 103 rejections (prior art and obviousness) but not Section 101 rejections — the subject recently explored by Colleen Chien and Jiun Ying Wu based on a lot of data. In a better world there would be far fewer patents, albeit ones that are strong, solid, and defensible based on public interest and scientific merit (as opposed to law firms’ and Office revenue).

12.01.18

“ILO Gave the EPO Medical Committee a Good Slapping”

Posted in Courtroom, Europe, Patents at 6:43 am by Dr. Roy Schestowitz

Guy Ryder
Guy Ryder, Director-General of ILO

Summary: The Technical Centre for Agricultural and Rural Cooperation quits ILO (or its jurisdiction), whose tribunal has just released very few new decisions, only one of which regarding the EPO

SEVERAL days ago ILO’s tribunal (the Administrative Tribunal) issued a ruling on the European Patent Organisation (EPO). We had heard some speculations and quick/shallow analyses, but we preferred to refrain from commenting (maybe SUEPO will remark on this soon). It’s hard to guess based on the outcome alone because behind each case/appeal there may be years’ worth of ordeals (stories of one’s life/career). We don’t want to remark on cases we don’t fully understand.

“I see the ILO gave the EPO Medical Committee a good slapping,” one reader noted, adding that “[i]n the 127th ILO session, there was only one EPO case.”

“It’s hard to guess based on the outcome alone because behind each case/appeal there may be years’ worth of ordeals (stories of one’s life/career).”That’s all? Just one? To be fair, there are only 3 decisions in total. There may be something mysterious going on and insiders notice. To quote ILO: “During its 334th Session (Geneva, 25 October-8 November 2018) the Governing Body of the International Labour Office took note of the intention of the Technical Centre for Agricultural and Rural Cooperation (CTA) to discontinue its recognition of the Tribunal’s jurisdiction and confirmed that the CTA will no longer be subject to the competence of the Tribunal with effect from 30 October 2018, except as regards the complaint currently pending before the Tribunal.”

Are they noticing ILO's incompetence?

Here is a selective quote from the EPO decision, cherry-picked by the above reader: “In the present case, as noted earlier, the members of the Medical Committee were divided in their opinion before the experts were consulted. Dr S. and Dr B. were of the opinion that the complainant’s invalidity was of an occupational origin. After the experts delivered their report, Dr S. indicated that he had changed his mind. His altered opinion was contrary to the opinion of the experts. However, in his writings before the medical opinion was acted on, and in the opinion itself, he did not refer to the experts’ report. The Tribunal infers that Dr S. did not, at a minimum, give earnest and substantial consideration to the views of the experts before the issuing of the medical opinion, as he should have and, necessarily, did not provide cogent and compelling reasons for rejecting their views. In this respect, he failed to perform his duties as a member of the Medical Committee. Similarly, Dr K. did not provide cogent and compelling reasons before the medical opinion was issued, or in the opinion, for rejecting the views of the experts, in breach of his duty as a member of the Medical Committee.”

We already know that the corrupt EPO management makes people ill, then lies about it. Even the tribunal can see that. We can guess who the above doctors are based on the initials alone; we already named some of them in the past.

Here is the official page for the 127th session and the English language PDF of the above decision [PDF] (there’s also French [PDF]). The links to the French version are all broken at the moment (from multiple anchor pages); how hard can it be to test the links in just three newly-issued decisions?

11.26.18

No, the Court of Appeals for the Federal Circuit (CAFC) Has Not Changed Its Position on Software Patents, Which Are Bunk

Posted in Courtroom, Deception, Patents at 12:06 am by Dr. Roy Schestowitz

Summary: Patent law (litigation) firms, looking to profit from software patenting and litigation with such patents, are still offering intentionally bad advice (about patentability and success rates in courts); they should instead embrace PTAB and undo the mess they’ve created

THE FINE art of cherry-picking, e.g. cherry-picking of court decisions, has been mastered by law firms looking for “marketing opportunities”. We saw that earlier this year with the Berkheimer lie and as we shall show in a moment, they’re doing it again. Their goal is to legitimise this old fiction that software patents are still worth pursuing at the U.S. Patent and Trademark Office (USPTO) and moreover suing over. Only lawyers would win. They don’t care if the patents are virtually worthless and litigation goes nowhere because they profit regardless (legal bills).

“They don’t care if the patents are virtually worthless and litigation goes nowhere because they profit regardless (legal bills).”For similar reasons, law firms encourage automation; they would want millions of patents pursued per year (like in China) and they constantly promote the concept of computer-generated inventions [sic], which sometimes get conflated with “AI” (not searching patents using classifiers or patenting software by dubbing it “AI”). Unified Patents, incidentally, has just taken note of an essay, “Computer-Generated Inventions, addressing the legal issues surrounding the patenting of computer-generated inventions.”

Terms like “computer-generated inventions” (a misnomer) aren’t to be confused with “computer-implemented inventions,” the misnomer long used by the European Patent Office (EPO) to bypass the EPC and facilitate software patents in Europe, except in European courts (they would typically reject these). There was an attempt to bypass the national courts using an EPO-connected Unified Patent Court (UPC), but thankfully it’s never going to happen. As one UPC proponent from Germany has said: “The draft Agreement on the withdrawal of the UK from the EU (“Brexit” Agreement, draft of November 14) is completely silent on the faith of the Unified Patent Court (UPC). Does this mean that the participation of the UK in the UPC system is off the table?”

“The patent maximalists try hard to abolish PTAB or overcome the courts, which they frequently bash or misrepresent.”“UPC has been off the table for at least a year,” I told him, but “CIPA and other lobbies, conjoined with law firms-owned media, just keep lying about it and lying to politicians…”

How does all this relate to the US? Well, the Federal Circuit keeps rejecting software patents, typically upon appeals emanating from Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). The patent maximalists try hard to abolish PTAB or overcome the courts, which they frequently bash or misrepresent. They would have us believe that the Federal Circuit changed its position, but this couldn’t be further from the truth. Let’s examine the past week’s news.

Last week Joseph Herndon wrote about a Federal Circuit case where prior art (§ 102) was leveraged to show that a US patent was invalid. This related to PTAB as explained below:

Patent owner Acceleration Bay, LLC (“Acceleration”) appealed the final written decisions of the Patent Trial and Appeal Board holding unpatentable claims of U.S. Patent Nos. 6,829,634; 6,701,344; and 6,714,966. Activision Blizzard, Inc., Electronic Arts Inc., Take-Two Interactive Software, Inc., 2k Sports, Inc., and Rockstar Games, Inc. (collectively, “Blizzard”) cross-appealed portions of the Board’s decisions holding that the Lin article is not a printed publication under 35 U.S.C. § 102(a), among other issues.

Here, we look at the determination of features in a “preamble” as being limitations of the claim, as well as, requirements of an article being considered a printed publication for prior art purposes.

The patents at issue are directed to a broadcast technique in which a broadcast channel overlays a point-to-point communications network. The communications network consists of a graph of point-to-point connections between host computers or “nodes,” through which the broadcast channel is implemented.

Blizzard filed six inter partes review (“IPR”) petitions—two for each of the ’344, ’966, and ’634 patents—based principally on two different prior art references: one set of IPRs challenged claims based on the Shoubridge article alone or combined with a prior art book Direct-Play (“Shoubridge IPRs”), and another set of IPRs challenged claims based on the Lin article alone or combined with DirectPlay (“Lin IPRs”).

[...]

Here, the Board found that although Lin was indexed by author and year, it was not meaningfully indexed such that an interested artisan exercising reasonable diligence would have found it, which is a proper consideration under the Federal Circuit precedent. As such, the Federal Circuit found that Lin was not a printed publication under § 102.

PTAB found these claims to be lacking novelty and thus unpatentable. It should not matter whether the prior art was printed or fully implemented or whatever; the important point is, prior art does exist. If something is not novel, then it isn’t novel, period.

“It should not matter whether the prior art was printed or fully implemented or whatever; the important point is, prior art does exist.”§ 102 isn’t so commonly leveraged in this context. Fake patents that are software patents are trivial to discredit and easy to invalidate using Section 101 (35 U.S.C. § 101). When it’s just algorithms, nothing physical, the SCOTUS Alice decision comes handy. A few days ago someone wrote: The U.S. Patent and Trademark Office (USPTO) has awarded Xerox a patent for a blockchain-driven auditing system for electronic files, according to a patent filing published Nov. 13. #xerox #blockchain https://lnkd.in/dxSzNNx

We wrote about it last weekend; this should be presumed invalid, just like every other “blockchain” patent.

But sometimes marketing defies reality and logic. How about the buzzword/term “AI”?

“…it’s almost the end of the year and the Berkheimer lie (from back in Valentine’s Day) is still being propped up by lying lawyers looking for a buck.”Aaron V. Gin is trying to call algorithmic patents i.e. software patents, “AI”. It’s done to hide/distract from the fact that Section 101 would invalidate all of them in court. They’re all abstract. As we explained numerous times in the past, the term “AI” is just being invoked/used/misused a lot more than before; Gin, however, says that “research indicates, perhaps as expected, that AI-related patent application filings have been increasing throughout the world at growing annualized rates. Figure 1 illustrates the number of AI-related patent application filings in various jurisdictions between the years 2006 and 2016.”

So they (mis)use the term more than before. That means nothing at all. It’s like a fashion. “An interesting piece of work from one of the world’s largest patents law firms,” a patent maximalist called it. So they analyse a bunch of buzzwords? More so ones that have been (re)popularised in the past couple of years? What a weak hypothesis and method.

Moving on to the next example, it’s almost the end of the year and the Berkheimer lie (from back in Valentine’s Day) is still being propped up by lying lawyers looking for a buck.

“To claim that Berkheimer had any meaningful effect would be patently false, but the above is just marketing anyway.”“Courts are trending toward broader patent eligibility,” wrote Jessica L.A. Marks in the headline. She “is a patent attorney at Finnegan, Henderson, Farabow, Garrett & Dunner, LLC,” according to her bio and she wrote along with “Virginia L. Carron [who] is a partner at Finnegan, Henderson, Farabow, Garrett & Dunner, LLP. She practices patent and trademark litigation and counseling.”

They are just spreading lies. The patent courts do the exact opposite, narrowing patent scope. So what’s the premise of this article? The Berkheimer nonsense, which changed nothing at all. To quote some portions:

In addition to those Supreme Court decisions, the lower courts and the USPTO’s Patent Trial and Appeal Board (PTAB) also began finding numerous previously patented inventions unpatentable under the new guidance. For example, between the Alice decision and June 2015, over 70% of patents challenged in federal courts as ineligible under this new standard were ultimately found invalid.

The U.S. Patent Office followed suit, strictly analyzing and rejecting applications under 35 U.S.C. § 101, the statute that governs patent eligibility. The number of rejections under § 101 for biological, genetic, and organic chemistry inventions doubled after Alice.

But in the last year, the tide has been turning. The Federal Circuit, the appellate court one step below the Supreme Court that handles all patent appeals, has issued several decisions that have gone the other way, upholding patent eligibility. Based on these decisions, the USPTO has issued memoranda to its patent examiners. These memoranda interpret federal circuit decisions and provide guidance to the patent examiners on issuing patent eligibility rejections. Each of these memoranda indicate that the USPTO is interested in allowing more patents.

For example, the Berkheimer memo, issued April 19, 2018, instructed that examiners could no longer reject claims as being “well-understood, routine, and conventional” without providing written support as to why each individual element and the combination of elements was “well-understood, routine, and conventional.”

To claim that Berkheimer had any meaningful effect would be patently false, but the above is just marketing anyway. Truth is not a necessity to them.

“In a super rare decision, one single software patent was upheld in CAFC…”As Berkheimer did not really help them much, on they move to (or latch onto) another case, the exceptionally rare kind of decision on HTC and Ancora (covered here before). A patent troll expressed glee over it, saying: “software [patent] licensing [extortion] is an area we pioneered: happy about this ruling…”

They linked to Charles Bieneman, a software patents proponent (law firm, obviously!) who belatedly wrote about Ancora Technologies, Inc. v. HTC America, Inc.

To quote:

Reversing a District Court decision, the Federal Circuit had held that patent claims directed to enforcing software licenses are patent-eligible under 35 U.S.C. §101 and the Alice abstract idea test. Ancora Technologies, Inc. v. HTC America, Inc., No. 2018-1404 (Nov. 16, 2018) (precedential) (opinion by Judge Taranto, joined by Judges Dyk and Wallach). Claims of U.S. Patent No. 6,411,941 recite “methods of limiting a computer’s running of software not authorized for that computer to run.” Relying on Enfish, LLC v. Microsoft Corp., (Fed. Cir. 2016), the Federal Circuit reversed the lower court’s Rule 12(b)(6) dismissal, holding that “the claimed advance” was patent-eligible as “a concrete assignment of specified functions among a computer’s components to improve computer security.”

The most hilarious spin came from the patent trolls’ lobby, IAM. It not only wrote about it behind paywall; it then proceeded to encouraging fruitless litigation with tweets like: “Patent owners [sic] have less to fear from early Alice motions after recent CAFC decision…”

“That was 10 days ago and they’re still talking about it. How much longer? A month? A year?”“A welcome 101 boost for software patent owners [sic] from CAFC,” said another tweet and later they added: “A CAFC judgment which overturns a lower court decision to invalidate a software-relate patent has provided some welcome relief to those holding rights [sic] in the field.”

In a super rare decision, one single software patent was upheld in CAFC and the firm behind it, Brooks Kushman P.C., is showing off as follows:

On November 16, 2018, the U.S. Court Appeals for the Federal Circuit ruled that a software security patent owned by Ancora Technologies, Inc. claims eligible subject matter under 35 U.S.C. § 101. The decision reversed a district court ruling that the patent was invalid as directed to an abstract idea. The decision establishes that patents claiming computer-related inventions directed to improving the function of a computer system by applying a specific improvement, rather than claiming only the improvement in the abstract, are patent-eligible under §101. Brooks Kushman PC represented Ancora in the Federal Circuit appeal.

That was 10 days ago and they’re still talking about it. How much longer? A month? A year? Like we said last weekend, this is a rare exception of a case, hardly the ‘norm’; almost every other 35 U.S.C. § 101 case winds up with CAFC’s unanimous invalidation of the underlying patents (the above is about one single patent, unlike cases where several are involved). Watchtroll wrote about a more typical 35 U.S.C. § 101 outcome at CAFC (from around the same time):

On Tuesday, November 13th, the Court of Appeals for the Federal Circuit issued another in a growing number of Rule 36 judgments. This particular Rule 36 patent eligibility loss for the patent owner came in Digital Media Technologies, Inc. v. Netflix, Inc., et al., and affirmed the district court’s finding that patent claims asserted by Digital Media against Netflix, Amazon and Hulu were invalid under 35 U.S.C. § 101 because they were directed to an abstract idea.

The Federal Circuit panel of Circuit Judges Alan Lourie, Timothy Dyk and Todd Hughes decided to issue the Rule 36 judgment without opinion despite counsel for Digital Media contending at oral arguments that the district court did not properly administer the Alice/Mayo test when reaching a determination that the asserted patents were patent ineligible, and despite the district court admitting the pure subjective nature of determining whether a claim is directed to an abstract idea.

The patent-at-issue in this case is U.S. Patent No. 8964764, titled Multimedia Network System with Content Importation, Content Exportation, and Integrated Content Management. It claims a multimedia system that addressed various needs in the field of managing digital information in a way that makes it easy to download audio/video content from the Internet while providing reliable and flexible content protection and incorporates the use of digital video recorders (DVRs) for multiple users within a premise or vehicle.

It would be wiser for law firms to just simply accept 35 U.S.C. § 101 and try to profit from the invalidation of bogus patents. Over the weekend Strafford had this ‘advert’ in which is dealt with the question: “How can patent litigation defendants take advantage of the guidance for §101 challenges?”

“It would be wiser for law firms to just simply accept 35 U.S.C. § 101 and try to profit from the invalidation of bogus patents.”It is a “Patent Eligibility Post-Alice” ‘webinar’ (one among other Strafford ‘webinars’ that Patent Docs has just advertised [1, 2], the sole exception being the American University Washington College of Law). It is no secret that software patents have generally become easy to invalidate. Lawyers can profit that that, too

Why don’t they focus on cleaning up the mess they created rather than combat the status quo and lie to their customers? As it stands at the moment, any time they 'pull a Berkheimer' they just harm their reputation by offering bad advice to clients.

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