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02.13.18

Congratulations to Cloudflare on Beating Patent Troll Blackbird Technologies

Posted in America, Courtroom, Patents at 1:24 pm by Dr. Roy Schestowitz

Previously:

Summary: After nearly a year in the court (no doubt an expensive exercise for Cloudflare) the Northern District of California finally dismisses the lawsuit, deeming the underlying claims “[a]bstract ideas [which] are not patentable”

THIS is certain to receive more press coverage soon. We first found out about this nearly 6 hours ago, after this post by Doug Kramer, titled “Bye Bye Blackbird” (with a clever picture, too).

Those are USPTO-granted patents which we wrote about in the summer of 2017 (see index above). To quote Kramer:

As we have talked about repeatedly in this blog, we at Cloudflare are not fans of the behavior of patent trolls. They prey upon innovative companies using overly-broad patents in an attempt to bleed settlements out of their targets. When we were first sued by a patent troll called Blackbird Technologies last spring, we decided that we weren’t going along with their game by agreeing to a modest settlement in lieu of going through the considerable effort and expense of litigation. We decided to fight.

We’re happy to report that earlier today, the United States District Court for the Northern District of California dismissed the case that Blackbird brought against Cloudflare. In a two-page order (copied below) Judge Vince Chhabria noted that “[a]bstract ideas are not patentable” and then held that Blackbird’s attempted assertion of the patent “attempts to monopolize the abstract idea of monitoring a preexisting data stream between a server” and is invalid as a matter of law. That means that Blackbird loses no matter what the facts of the case would have been.

Well done to this legal team. It may have just saved other victims of Blackbird (present and future). Let’s hope we never again hear this troll’s name.

02.11.18

Some § 101 Cases That the Patent ‘Industry’ Would Rather Not Talk (Much) About

Posted in America, Courtroom at 6:40 pm by Dr. Roy Schestowitz

Because that might damage faith in software patents

A quiet area

Summary: With § 101 still being entertained by courts and by PTAB, software patents continue to be invalidated, but these cases receive nowhere near the level of attention Berkheimer v HP received (because patent lawyers prefer to focus only on what suits their agenda)

THE existence of software patents at the USPTO gradually becomes more of a legacy. Sure, new ones continue to be granted, but few are asserted in a court of law. Some of them are regarded/considered to be next to worthless.

“The existence of software patents at the USPTO gradually becomes more of a legacy.”Our previous article, regarding Berkheimer v HP, explained that it’s not really about § 101, contrary to what the patent microcosm would like us to think. Michael Borella said some days ago that this decision “may result in the USPTO having to update its § 101 guidance for examiners and the PTAB.”

May.

Maybe.

Like we said in the last article, this isn’t the Supreme Court. Here is what patent maximalists want to believe:

But the impact of today’s decision may be further-reaching than the other three. At the very least, it provides a degree of clarity as to the evidentiary standard applicable to a § 101 challenge on summary judgment. This may result in the USPTO having to update its § 101 guidance for examiners and the PTAB.

No, the same can be said for other sections. All that the court said was, sufficient evidence needs to be provided. That’s all.

“…Even the US government strives to eliminate what it perceives to be software patents…”In another long article (published at 11:20 PM by Joseph Herndon) the same site said that the “U.S. Government Fails in Attempt to Invalidate U.S. Patents under § 101″ (sounds promising for them, at least on the surface).

Even the US government strives to eliminate what it perceives to be software patents and here are the actual details:

In a bit of an ironic outcome, the U.S. government was unsuccessful in invalidating U.S. patents under § 101. It seems odd that the government issued the patents on the one hand, and later, tried to invalidate them.

Plaintiff, Science Applications International Corp. (“SAIC”), claimed that the U.S. government infringed four patents by entering into contracts with plaintiff’s competitors for the procurement of specialized heads up displays (“HUD”) and night vision goggles that allegedly use SAIC’s patented technology. Defendant, the United States, moved to dismiss for failure to state a claim under Rule 12(b)(6), contending that Plaintiff’s patents claim ineligible subject matter under 35 U.S.C. § 101.

The patents at issue here are U.S. Patent Nos. 7,787,012; 8,817,103; 9,229,230; and 9,618,752. The four patents form two patent families due to the interrelatedness of the applications.

These aren’t software patents. They involve actual hardware. So ascribing this to a § 101 failure is misleading at best; this was a poor defense strategy/argument. We see lots of those.

“…the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC § 101/Alice)”Remember that just because a defendant invokes § 101 does not guarantee success. Sometimes § 101 just isn’t relevant at all.

In other news (from another site), the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC § 101/Alice). Not so exciting for patent maximalists, so of course they mostly ignored it. It’s a § 101 affirmation:

If you want an example of the kind of patent-eligibility question that is now easy to resolve under the Alice abstract idea test, look to the Federal Circuit’s non-precedential decision in Move, Inc. v. Real Estate Alliance, No. 2017-1463 (Fed. Cir. Feb. 1, 2018) (opinion by Judge Stoll, joined by Judges Lourie and Wallach). In this case, the court affirmed a lower court’s summary judgment of invalidity under 35 USC § 101 of claims of two patents directed to computerized methods for locating available real estate, i.e., property for purchase.

[...]

The Court strictly followed the Alice/Mayo test for section 101, and noted that this test is not concerned with whether an artisan skilled in the art can perform the method claimed by the patent nor whether the claim language is sufficiently definite, novel, or non-obvious, but rather whether the character of a claim as a whole is directed to a patent-ineligible subject matter. Taken on the face of the claims and the specification, the Court found that SAIC’s patents combine existing computer technology, sensors, and calculations in an unconventional way in order to reach a solution to the problem of alignment and consistently accurate display. Because SAIC did not stop at the concept of superimposition (in the abstract) but instead provided a solution for achieving accuracy and consistency in image registration, SAIC’s claims are not directed to an abstract idea.

That’s just more of the usual from CAFC. It’s an Alice/Mayo test. More such examples were mentioned in recent days.

“PTAB Reversed Examiner’s 101 Rejection of Robotic Software Claims,” to name one example (but this is merely an examination stage refutation). A much higher level decision wound up as usual: “Zouli v Google (Fed. Cir. 2018); 101/CBM Case; CAFC Affirmed PTAB” (goodbye bogus patent).

“Another showing of disdain for the legal system or for justice itself?”Earlier today Patently-O was bashing rejection of patents using cartoons (those are typically anti-Alice). Another showing of disdain for the legal system or for justice itself? Every lost patent is a tragedy? Some politicians say “corporations are people” and patent lawyers certainly act as though “patents are people”. Maybe one day they’ll carry around billboards that say “patent lives matter”.

This came a few days after a misleading headline from Patently-O‘s Dennis Crouch — in a post which probably constitutes more of his PTAB baiting. How on Earth did he come up with a headline like “Climate Change is an Abstract Idea?”

Here’s how:

In the ex parte appeal, the PTAB has affirmed the examiner’s rejection on eligibility grounds – finding that the claims were directed to the abstract idea of “selecti[ng] data (temperature, radiation) obtained from known and existing technology and then using the data to make a correlation.”

[...]

With respect to Alice/Mayo step-two (“something more”), the PTAB found that the improvement offered by the invention “is an improvement in the application of the mathematical relationship in determining substance concentration, which is, itself, an abstract idea.”

The decision would look like a good candidate for a civil action challenge or appeal – except that the PTAB also found the claims obvious.

So what? That’s justice. It’s not “death squads” as the maximalists want us to believe. It’s just an invalidation of mere patents (or pieces of paper). No life or death at stake. Yet they use words like “kill”.

“No life or death at stake. Yet they use words like “kill”.”“Software Patent Application Killed by the PTAB with 101/Alice,” one of them said. He also said “smokes” (like “kills” and “survives”). “PTAB “Smokes” Another IBM Patent Application with 101/Alice,” says the outline. Notice the terminology of war. They make it sound like some sort of massacre or genocide; never mind if this isn’t criminal law or even immigration law but a bunch of mere patents. Another one about Section 101: “PTAB Affirms Examiner’s 101 Rejection of Method for Measuring IR Absorption by Increasing and Decreasing Temp of a Body…”

“Quite frankly, we don’t expect academic/scholarly honesty from these people. They’re in this occupation for the money, not principles.”At least he didn’t call that “Climate Change” like Dennis Crouch did (perhaps hoping to insinuate, as before, that patent rejection is the moral/scientific equivalent of climate change denial).

Quite frankly, we don’t expect academic/scholarly honesty from these people. They’re in this occupation for the money, not principles. Here’s an article by Charles Bieneman, who again uses the word “Survive” (war lexicon). Patents do not “survive” (the war narrative), they can just be upheld as valid or rejected as invalid. From Bieneman’s article:

A little less than a year after finding that claims of U.S. Patent No. 6,474,159, directed to an inertial tracking system, were patent-eligible under the Alice abstract idea test, the Federal Circuit has affirmed a decision of the USPTO’s Patent Trial and Appeal Board (PTAB) that claims of the ’159 patent have not been shown to be obvious under 35 U.S.C. § 103. Elbit Systems of America, LLC. v. Thales Visionix, Inc., No. 2017-1355 (Fed. Cir. Feb 6, 2018) (precedential) (opinion by Judge Wallach, joined by Judges Moore and Stoll).

[...]

The Federal Circuit sided with the patent owner, whose expert had explained the benefits of the two-step-method over the three-step method. And arguments that the PTAB improperly failed to acknowledge expert testimony that one of ordinary skill in the art would have understood prior art as disclosing the recited integration were merely an attempt to create legal error by looking at PTAB statements in isolation.

Patent maximalists took note of the above decision and Janice Mueller‏ wrote: “Thales Visionix wins again! Elbit v Thales Visionix FedCir 2/6/18 affirms PTAB IPR determination that challenged claims of TV’s ‘159 patent would NOT have been obvious. TV’s expert witness testimony was critical in distinguishing prior art.”

As expected, Patently-O wrote about it:

In its IPR final decision, the PTAB sided with the patentee – holding that Elbit had failed to prove that the challenged claims of Thales patent were obvious. On appeal, the Federal Circuit has affirmed – holding that “substantial evidence” supported the finding.

[...]

On appeal, the Federal Circuit held that the PTAB was the best position to determine expert credibility and thus declined to disturb those credibility determinations. Trs. of Columbia Univ. v. Illumina, Inc., 620 F. App’x 916, 922 (Fed. Cir. 2015) (“The PTAB [i]s entitled to weigh the credibility of the witnesses.”) The challenger’s attorneys attempted to support their case with an explanation that PHOSITA would understand the meaning the prior art – That argument was rejected on appeal, however, as attorney argument rather than evidence based. Rather, to make the argument, the party should have actually presented evidence on the level of understanding of a person of skill in the art.

As we said before, not every Alice/§ 101 challenge/defense will result in patent rejection. It’s not a magic wand and it only works where it is applicable. Alice is applicable to just about every algorithm and it should also be applicable where algorithms are being ‘dressed up’ as ‘device’ — something which this new post deals with although it fails to grasp that “mechanical arts” is just a fancy term for machine. To quote: “A listener/reader pointed me in the direction of the recent oral argument at the Federal Circuit in Robert Bosch v. ITC. The case appears to concern patents of inventor/patent attorney Dr. Stephen Gass. The oral argument highlights that §101/Alice arguments are now making their way into the mechanical arts.”

“We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe).”Here in Europe and also in places like India and New Zealand loopholes were intentionally crafted to enable patenting of software by misportrayal thereof. Just claiming some algorithm to be executable/runnable on some particular machine does not change the fact that it’s abstract.

We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe). Over the past few decades patent scope had been stretched to the point where it became laughable. Some companies actually pursue patents on human genome as though it’s an invention and last month CAFC ruled in favour of a patent on GUIs. We hope that the Supreme Court will overturn that latter decision.

The Patent Litigation ‘Industry’ Celebrates Outcome of Berkheimer v HP, But It’s Not About § 101

Posted in America, Courtroom, Patents at 5:13 pm by Dr. Roy Schestowitz

The decision concerns presentation or availability of evidence (§ 101 being more of a ‘footnote’)

Berkheimer v HP

Summary: A case which isn’t inherently about § 101 but about the evidence backing rejection of a patent (see above) is being spun by patent maximalists, who also resort to bashing of judges, academics, and Justices (Supreme Court) in the process

THE patent microcosm isn’t used to being publicly challenged. It is not accustomed to refutation. It just pays money to dominate the news feeds and spread its delusional vision. The EPO does this in Europe (because Battistelli has no qualm about corrupting media), but in the US it’s not the USPTO but the patent microcosm which does all this. This post is a quick debunking.

“It’s not applicable just to § 101 and there is nothing extraordinary about it.”A lot of it started when Patently-O‘s Dennis Crouch wrote about “Underlying Questions of Fact”, quoting the following passage: “While patent eligibility is ultimately a question of law, the district court erred in concluding there are no underlying factual questions to the § 101 inquiry. Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.”

So that’s about it. It’s not applicable just to § 101 and there is nothing extraordinary about it. Here is the original decision rather than the ‘twist’ from the patent microcosm. Michael Loney (part of the patent microcosm’s media) wrote: “Important statement from the Federal Circuit on the factual underpinnings of the eligibility analysis, in Berkheimer v HP…”

“The Federal Circuit is not the US Supreme Court, so whether that “sets new rules for fact finding” remains to be seen (in practice).”Important statement or important for the patent microcosm statement? Those two things aren’t the same.

As one patent-centric person put it: “FedCir vacates summary judgment of ineligibility on dependent claims due to representative treatment of independent. Court says eligibility is a question of fact. So… Rule 132 decs to traverse 101 rejections?”

“They maliciously imply that the courts have thus far rejected facts. That’s how patent trolls and extremists prefer to think of it.”Professor Risch wrote about the same decision that the “Federal Circuit sets new rules for fact finding in patentable subject matter determinations. Underlying determinations of conventionality must be supported. I see this one going en banc.”

The Federal Circuit is not the US Supreme Court, so whether that “sets new rules for fact finding” remains to be seen (in practice). A patent maximalist wrote: “The Fed. Cir. Held Today that the PTAB Does Indeed Need Facts, Not Just Official Notice, to Make a 101 Case” (he links to a site of a literal patent troll).

“Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB.”Notice the above headline. They maliciously imply that the courts have thus far rejected facts. That’s how patent trolls and extremists prefer to think of it.

A different patent-centric person (more balanced) said: “Berkheimer v HP FedCir 2/8/18 affirms cl 1 not 101 eligible BUT vacates SJ re cls 4-7; fact q’s exist under Alice step 2. “Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.” Other cls indef.”

It’s all about that passage quoted in Patently-O. Another patent-centric person called it a “[m]omentous decision.” He said: “For the first time, FedCir vacated a SJ of patent ineligibility on ground that there is a genuine dispute of material fact underlying 101 determination. And, opinion holds that resolution requires meeting the clear and convincing standard for the defendant.”

Then came a trolls-connected crank who likes to bash professors whom he does not agree with. He is attacking Professor Lemley again: “If Lemley were any more transparent he’d be Saran Wrap Every “principle,” every “well reasoned argument” spouted from his fraudulent lips about evils/benefits of patents is a farce, a charade whose only purpose is to generate more billings for firm by introducing uncertainty [] opinion holds that resolution requires meeting the clear and convincing standard for the defendant” Im embarrassed to say I didn’t even notice how important that is… so far the panels have been ducking the SOP, and this is also extremely useful [] Listening to oral argument in Berkheimer case: http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2017-1437.mp3 … Apparent that Moore, Stoll, think support in specification for technical advantage can create dispute of fact to defeat 101 – pray for them on your panel if you have a #patent Alice rejection case!”

“And if that’s not bad enough (bashing academics you don’t agree with and claiming they’re not professors even though they are), then came bashing of SCOTUS…”Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB. The patent troll wrote: “How am I to take this “scholarly” paper seriously from a (co) author, an executive for Unified Patents & whose firm has a PTAB institution rate 33 points BELOW the industry average? And he knows “low quality patents”?”

The troll’s friend (who wrote pieces against the EFF for the troll’s site) dished some more dirt: “inter partes review is, as Congress intended, eliminating patents that appear to be of relatively low quality” papers.ssrn.com/sol3/papers.cf… No, IPR=rigged game where patent owner given 1 yr to defend vs infringer who has 6 mo head start, like giving runner 50m head start in 100m race”

“What pretty much all the above have in common is that they make it about § 101, striving to almost cast it “irrelevant” and in need of deprecation.”And if that’s not bad enough (bashing academics you don’t agree with and claiming they’re not professors even though they are), then came bashing of SCOTUS: “don’t know if there were method claims in those patents, but to some extent, the attorney was 100% right; if you’re going to say use of one physical generic machine (computer) can be abstract, why can’t use of another physical machine be similar abstract? SCOTUS gave us this mess…”

No, SCOTUS belatedly (decades late) dealt with the issue and did the right thing. Sure, patent trolls aren’t happy about it, but nobody is happy about patent trolls, either.

He’s basically ranting about other things, still upset that PTAB eliminates many software patents. What we have here is a proponent of lawless patent trolls who use bogus patents (which PTAB tackles) for blackmail. There have been all sorts of other attacks on PTAB from his account this past week, e.g. [1, 2, 3], not to mention veiled advocacy of software patents. His online friend was all over Berkheimer v HP [1, 2], as well as another precedential new decision. What pretty much all the above have in common is that they make it about § 101, striving to almost cast it “irrelevant” and in need of deprecation.

“The Internet can oftentimes be like an echo chamber, especially so-called ‘social media’, so patent maximalists are likely exposed only to voices to people who already agree with them.”Go back to the source from the Court of Appeals for the Federal Circuit (CAFC) (we have made this local copy, it’s 17 pages long, with § 101 mentioned about a dozen times, i.e. less than once per page) and read what was actually said. The Internet can oftentimes be like an echo chamber, especially so-called ‘social media’, so patent maximalists are likely exposed only to voices to people who already agree with them.

02.09.18

In China, GUIs Are Not Patent-Enforceable and GUI Patents Are Not Algorithms, Contrary to New Spin

Posted in America, Asia, Courtroom, Patents at 4:57 pm by Dr. Roy Schestowitz

Those aren’t computer programs but layouts

How on Earth are such simple GUIs being patented as though they are inventions?

Summary: The patent microcosm is hoping to convince the public that in Core Wireless Licensing v LG Electronics there was some kind of triumph for software patents (at the Federal Circuit), but this has nothing to do with software (mere presentation) and China is pushing back against such patents, signaling a rethink about whether such patents should exist in the first place

AS odd as that may seem, the USPTO actually grants some patents on GUIs (and a high court defended one such patent last month). So does the EPO, with notable examples like a progress bar, slide to unlock, and even worse things (like one-click shopping).

It’s amazing, isn’t it? How shallow and superficial can some patents be? Do these even count as innovations at all? Not really.

So there’s this new irregular case. It stands out from the crowd. The patent maximalists keep pretending it’s about § 101. It’s not. It’s not about algorithms either. A few days ago one firm wrote:

The Federal Circuit continues to provide much needed guidance (and relief) in interpreting patent eligibility under 35 U.S.C. §101. In Core Wireless Licensing v. LG Electronics (Fed. Cir. January 25, 2018), the Federal Circuit affirmed the eligibility of a patent relating to an improved user interface for computing devices. The decision yields arguments and approaches for eligibility of software patents in general.

§ 101 was attempted as a defense, but the patent in question isn’t the Alice type. In China, by contrast, GUI patents have actually suffered a blow. There’s lots of spin about that, as one might expect.

“In China, by contrast, GUI patents have actually suffered a blow. There’s lots of spin about that, as one might expect.”A few days ago, copy-pasting Ran Wang and Xiaoyan Feng of Liu Shen & Associates in Beijing, IAM went with the misleading headline “China’s first court decision on GUI design patent infringement narrows avenues for protecting software” (but no, GUI patents are not software; there’s no algorithm associated with them).

Another such copy (‘prepared’ piece) was cross-posted to preserve the confusion. To quote:

Patent protection for software in China is fairly strong, and as this blog has chronicled over the last few years it has gotten stronger still. But when it comes to the design and look of software, and how users interact with it, a recent Beijing IP Court ruling suggests creators may face an uphill battle in asserting their rights against copycats.

Graphical user interfaces (GUIs) are a relatively new category under China’s design patent regime. But they have been a fast-growing field, as many of the country’s leading lights in tech are software-first companies. In the increasingly competitive smartphone field, operating system and app design are key battlegrounds between domestic players.

We wrote about that last weekend. It’s actually encouraging to see that even though SIPO became somewhat of a garbage dump/landfill of low-quality patents, Chinese courts are sometimes willing to stand in the way.

There might not be a future to GUI patents. Time will tell…

02.04.18

Statistics Show That Motions to Amend Patents Are Rarely Successful (No Second Chance for Bad Patents)

Posted in America, Courtroom, Patents at 1:47 pm by Dr. Roy Schestowitz

Sign of success and failure

Summary: A look at some curious figures which serve to highlight the role played by the patent appeal board, PTAB, which cleans up the mess left for a number of decades due to lenient examination

THE bashing of PTAB aside, this past week we saw some interesting posts that aren’t pure lobbying.

Scott McKeown, for example, shared some statistics. The headline is a tad misleading because PTAB does not attack. PTAB defends. It defends from bogus patents. But here’s the key part:

Patent reexamination filings have fallen 86% since 2012. With the elimination of the popular inter partes patent reexamination option in 2012, an overall decrease was certainly expected. However, ex parte reexamination filings continue to drop every year. Only 191 ex parte reexamination requests were filed in 2017. This was the lowest number of ex parte reexamination filings since the mid-1990s. While an ex parte patent challenge is far less appealing to a patent challenger than a contested proceeding (AIA trial proceeding), and this factor has undoubtedly contributed to the decreasing numbers, patent reexamination and other post-grant proceedings of the Central Reexamination Unit (CRU) still provide unique rehabilitation opportunities for patent owners.

Andrew Williams also shared some statistics from PTAB. As it turns out, those begging to salvage their bogus patents by editing them have slim chances. As Williams put it: “Tellingly, the third chart shows the outcome of the 170 decided motions to amend in which substitute claims were proposed. In 156 of these cases, or 92%, the Board denied the motion. The four motions to amend that were granted outright represent 2% of all motions to amend with substitute claims that were decided, and represent a much smaller percentage of all motions to amend. The ten motions to amend that were granted-in-part represented 6% of the total decided. The Study included a separate spreadsheet that contained the data from the 275 trials. This spreadsheet explains in which post-issuance proceedings that motions to amend were granted.”

More statistics have, as usual, come from the PTAB-hostile Anticipat. PTAB fights back against patent maximalism, whereas Anticipat keeps speaking of “tricks”, e.g. “second trick is the examiner requiring narrower claims than is required by the law.”

To quote their post:

Patent Examiners are tasked with a daunting task of checking each patent application for compliance with all the patent laws and rules. Most importantly, the Examiner must show that the claims are not unpatentable, including being free and clear of prior art. And they must do all this within the time expectations that the USPTO offers.

Another Anticipat post (from a few days later) advocates tricking patent examiners for software patents. What they might prefer not to say is that even granted patents of this kind, once assessed by PTAB and courts, are pretty much worthless. The odds are high that they will get invalidated (the higher the court, the more likely this outcome).

The bottom line is, PTAB serves to discourage pursuit of bad patents. It should be respected for that, not mocked.

The Latest Attacks on PTAB Are Old News or Smears Recycled by Watchtroll et al.

Posted in America, Courtroom, Patents at 12:59 pm by Dr. Roy Schestowitz

An old newspaper

Summary: The attempts to tarnish the reputation of the Patent Trial and Appeal Board (PTAB), particularly because of Oil States at the US Supreme Court (SCOTUS), have reached pretty pathetic levels and endless repetition with sound bites like “kangaroo court” or “efficient infringement”

THE past week, based on our media survey, showed a rise in attacks on PTAB (compared to the prior week). We are guessing that these attacks will intensify as Oil States (SCOTUS decision) draws near. It’s all about PTAB.

Watchtroll has been very late to the news this month. It was covering news from almost 3 weeks ago (e.g. Exmark, TiVo, and WesternGeco, which we mentioned before). Must be slow for them… very late to the news. But rest assured, Watchtroll will carry on with PTAB bashing. Not even anything new, just old stuff recycled.

“We are guessing that these attacks will intensify as Oil States (SCOTUS decision) draws near.”There have been fewer attacks on PTAB lately (slowdown for the anti-PTAB lobby), so here comes Dennis Crouch complaining again about lack of opinions (to slow PTAB down). It wasn’t just Crouch/Patently-O. Two anti-PTAB articles were published by Watchtroll on Monday and two more anti-PTAB articles came on on Tuesday, e.g. picking on the bogeyman Google (there are many cases/petitions every single day, so it’s not hard to cherry-pick). Watchtroll carried on the following day (Wednesday). To us that just looks like lobbying at work, so we prefer not to link to all these examples. We’re merely observing.

Another PTAB basher, “Patent Buddy”, carried on with that anti-PTAB narrative, neglecting to note that PTAB is typically petitioned to deal with patents not at random; they take on some of the most problematic ones.

“…rest assured, Watchtroll will carry on with PTAB bashing. Not even anything new, just old stuff recycled.”“On January 24,” he wrote, “the PTAB affirmed Seven 101/Alice Rejections by Examiners and Denied One Request for Reconsideration. No 101 Rejections Were Reversed.”

“On January 25,” he later added, “the PTAB Published 8 Decisions on 101 Issues. 5 Decisions Affirmed Examiner Rejections. 1 Decision Affirmed in Part. 2 Decisions Reversed Examiners.”

Here’s one pertinent example of the exception: “PTAB Reversed 101 Rejection of Philips Patent Application for a Device for Measuring Vital Signs…”

The patent trolls recently joked that this is the sort of thing they deem to be a “win” and are celebrating. Here’s more: “PTAB Reversed Examiner’s Rejection of a Mechanical Device under 101…”

We’re basically talking about a mere patent application here.

“Another PTAB basher, “Patent Buddy”, carried on with that anti-PTAB narrative, neglecting to note that PTAB is typically petitioned to deal with patents not at random; they take on some of the most problematic ones.”Paul Morinville and Watchtroll wrote that “PTAB has a kill [sic] rate of over 90%. Alice v. CLS Bank’s abstract idea is killing [sic] 67%.”

That’s good. It’s not a “killing” or a “kill” (they try to make PTAB seem combative and aggressive).

Here’s the context (more of that sickening drama about “innovation” which we've just rebutted):

Killing the fictitious patent troll has already strangled U.S. innovation in the cradle. All three branches of the government rapidly changed every aspect of the patent system to work against the small for the benefit of the large. Today, the PTAB has a kill rate of over 90%. Alice v. CLS Bank’s abstract idea is killing 67%.

“Paul Morinville and Watchtroll aren’t exactly good with facts,” I told Daniel Nazer (EFF) after he had responded as follows: “IP Watchdog claims that “bad patents” never get litigated. Okay, here are some bad patents that were: 6,368,268 6,415,207 6,529,725 6,612,985 6,633,900 6,763,299 6,795,918 6,817,863 6,904,359 7,064,681 7,113,110 7,119,716 7,400,970 7,899,713 7,986,426 8,788,090 9,013,334″

“There’s a false assumption here that lawyers give the best advice; they often advise so to as to maximise their own profits and sell the most expensive ‘products’, e.g. lawsuits.”See the reply from IAM: “If bad patents get litigated, the patent owner is being stubborn and/or is receiving bad advice. Crucially, by definition he/she/it will lose. The killer issue in the US is the cost of litigating and how costs are (not) allocated. [] It’s worth remembering that for deep pocket, efficient infringers the cost of US patent litigation – with the PTAB now thrown in – is a huge benefit.”

I then responded to IAM: “And who’s to say that bad advice isn’t being given by selfish/greedy lawyers?”

There’s a false assumption here that lawyers give the best advice; they often advise so to as to maximise their own profits and sell the most expensive ‘products’, e.g. lawsuits.

01.29.18

Distortion of the Patent System Masked Behind Acronyms Like CAFC/PTAB and Foreign-Sounding Jargon Like Estoppel or Inter Partes Review (IPR)

Posted in America, Courtroom, Patents at 4:26 am by Dr. Roy Schestowitz

It’s no secret, some argue, that lawyers make it difficult to understand the law so that you’ll always need them to ‘help’

Estoppel
Reference: Estoppel at Wikipedia

Summary: A quick look at some recent decisions/developments from the higher/highest patent courts in the US and PTAB’s judgments that help improve patent quality (and are therefore hated by the patent ‘industry’)

CAN one patent a GUI at the USPTO? The Court of Appeals for the Federal Circuit (CAFC) does not understand GUIs/software development [1, 2], so it recently defended a patent on a GUI, contrary to common sense. As somebody from Texas put it (Jonathan Szarzynski): “Nice Precedential win for Core Wireless at the CAFC. A precedential opinion that discusses 101 and eligibility, and finds that a user interface that speeds a user’s navigation through various views and windows is patentable subject matter.”

“The case involves Synopsys, which now owns the nefarious, Microsoft-connected Black Duck.”This is a potentially dangerous decision. Cascading menus are nothing new and to uphold a patent on those would open the floodgates to all sorts of trivial lawsuits (like Apple’s “slide to unlock”).

Recently, CAFC also looked at the case of patent assignor Hsiun (mentioned here before). The case involves Synopsys, which now owns the nefarious, Microsoft-connected Black Duck. The case is about assignor estoppel and it was mentioned by Patently-O a few days ago. As a bit of background:

EVE-USA was founded by former employees of Mentor — the named inventors on Mentor’s emulation software patents. Initially Mentor licensed the patents to EVE for its use, but that license was terminated when Synopsys later acquired EVE. Mentor then sued Synopsys and won a $36 million jury verdict for infringement of its U.S. Patent No. 6,240,376. Following the Federal Circuit’s decision largely supporting the verdict, EVE/Synopsis have petitioned the Supreme Court for writ of certiorari asking two questions relating respectively to Assignor Estoppel and Apportionment of Damages.

The US Supreme Court (SCOTUS) will look into it. This means that briefs will likely be submitted by the patent microcosm and we know in whose favour. The patent microcosm generally wants patents to get more ‘teeth’ at SCOTUS. The other day it wrote about the WesternGeco case, arguing that “SCOTUS could make patents more valuable in WesternGeco case” (not about patent scope).

“The patent microcosm generally wants patents to get more ‘teeth’ at SCOTUS.”“Can a patent holder collect lost-profit damages if infringement of a US patent occurs abroad? The US Supreme Court will decide in WesternGeco v Ion Geophysical,” Managing IP wrote. This may have an impact on trade, e.g. with China.

Going back to CAFC, there’s the Arthrex patent (8,821,541) which CAFC recently decided on. PTAB was supported by CAFC (as usual) and Dennis Crouch wrote about the estoppel (it’s an edge case at CAFC). To quote:

The dispute in this case is about what should happen when a patentee disclaims its patent claims prior to an inter partes review institution decision. The Arthrex patent at issue is U.S. Patent No. 8,821,541 which covers a suture anchor — similar to a dry-wall anchor, but sticks into flesh.

After Smith & Nephew filed its IPR petition Arthrex disclaimed the challenged claims. PTO rules state that “No inter partes review will be instituted based on disclaimed claims.” 37 C.F.R. § 42.107(e). And, following the rule, the PTAB (acting pre-institution on in the shoes of the PTO director) terminated the petition without instituting the IPR.

Estoppel is becoming more of a ‘thing’ in relation to PTAB nowadays. Consider this post titled “The PTAB Estoppel Keeping Patent Prosecutors Awake at Night”. Does the author, Scott McKeown, think that people who are bullied using patents don’t lose sleep or stay awake at night? Anyway, here is what he said: “Patent prosecutors might consider PTAB estoppel a pure post-grant concern. That is, a litigation issue restricted to district courts after a failed PTAB challenge, or an issue raised in the context of a second-bite at the PTAB apple. But, PTAB estoppel can effect both failed petitioners and unsuccessful patent owners. Patent owner estoppel, often overlooked, is only now beginning to impact patent prosecution.”

It’s a fairly new thing in this context. Expect this to be increasingly used to defang PTAB petitions.

Dennis Crouch has just mentioned bizarre if not laughable patents that PTAB belatedly tossed out:

Ex Parte Barrego, APPEAL 2016-006527 (PTAB January 2018). Barrego’s claim is directed to a roofing underlay with a number of features including “a pattern having the appearance of a shingled roof printed on at least one surface of the underlayment.” Here, the PTAB affirmed the indefiniteness rejection — finding that “one of ordinary skill would [not] be able to determine definitely whether many particular underlayment patterns do or do not have the appearance of a shingled roof.”

“Unfortunately, the patent microcosm relies on legalese to keep technical people out of the discussion, thus uninvolved or apathetic.”This is actually a good thing, but not for the patent microcosm. Watchtroll just continues its ritualistic attacks on the integrity of PTAB (in order to help patent trolls) and although it habitually publishes something worth reading (e.g. [1, 2]) the site is polluted with ads, press releases and even pure puff pieces (like this borderline marketing from Dan Ovanezian and Scott Breining); no depth, classic fluff. We have chosen to keep an eye on Watchtroll (especially because of its attacks on PTAB and CAFC judges), but we prefer not to entertain it too much.

Unfortunately, the patent microcosm relies on legalese to keep technical people out of the discussion, thus uninvolved or apathetic. This is a problem we have been mentioning for years. Sadly, we need to adopt some of their own (often misleading) terms. It has become essential for communication.

01.28.18

The Court of Appeals for the Federal Circuit (CAFC) Revisits ‘Divided Infringement’

Posted in America, Courtroom, Patents at 11:44 pm by Dr. Roy Schestowitz

Judge O’Malley on Travel Sentry v Tropp

Divided infringement
Reference: Divided infringement

Summary: Alluding again to the Akamai case (a famous GNU/Linux user), the Federal Circuit debates the practice of working around patents in creative ways

IN a recent case which is not about patent scope, the Court of Appeals for the Federal Circuit (CAFC) ruled on divided infringement.

While more radical sites such as Watchtroll wrote about it, so did more moderate sites. “This recent interpretation of the Akamai test may at the very least make it more difficult for accused infringers to have divided infringement cases dismissed at the summary judgement stage,” said a blog a couple of weeks ago.

Divided infringement is explained below:

Enforcing a patent with claims that raise the specter of divided infringement can be a difficult plight for patent owners. Even under the more liberal standard set forth in the Federal Circuit’s en banc decision in Akamai v. Limelight, it has proven difficult for patent owners to establish the necessary levels of control or cooperation between two or more parties who together perform the steps of a method claim. However, the Federal Circuit decision in Travel Sentry, Inc. v. Tropp suggests that the requisite level of cooperation or control should be considered broadly. This recent interpretation of the Akamai test may at the very least make it more difficult for accused infringers to have divided infringement cases dismissed at the summary judgement stage.

[...]

The Federal Circuit was authored by Judge O’Malley and joined by Judges Lourie and Taranto.

Divided infringement was also mentioned by Peter Keros earlier this month. He wrote:

For divided patent infringement under 35 U.S.C. § 271(b), a patent owner must show that a single party has directly infringed the patented claims under 35 U.S.C. § 271(a).

We typically write about 35 U.S.C. § 101, but in this particular case we deal with a decision that can soon be cited again. Hence we take note of it, for future reference.

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