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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.

11.25.18

Opponents of the Patent Trial and Appeal Board (PTAB), People Who Profit From Litigation, Accuse PTAB of Horrible Things to Stir up Imaginary ‘Controversies’

Posted in Courtroom, Patents at 10:31 pm by Dr. Roy Schestowitz

Summary: The abundance of inter partes reviews (IPRs) which invalidate US patents by the Patent Trial and Appeal Board (PTAB) may mean very little litigation in years to come; that does not motivate and in fact very much demoralises those who make a living out of patent lawsuits

PTAB faces some hostilities from the new Director of the U.S. Patent and Trademark Office (USPTO), who cites perceived ‘issues’ expressed by patent maximalists like himself. The reality of the matter is, companies that actually make something support and appreciate PTAB.

Watchtroll, as always, keeps bashing PTAB. As recently as yesterday (Sunday) Steve Brachmann wrote about PTAB invalidating yet another patent and one day earlier Watchtroll had published “The PTAB Promotes Petitioner Promiscuity” (yes, this anti-PTAB extremists’ site used the word “promiscuity” and maybe tomorrow these extremists will call judges “prostitutes”).

These patent lawyers and law firms are awful. The latest attack comes from David Wanetick, who calls himself “a world-renowned authority on the issue of intellectual property valuation” (there is no such thing as "intellectual property" as we last explained yesterday).

PTAB nowadays uses or leverages § 101 to squash hundreds of software patents per month. It is not hard to imagine who would oppose that.

Dennis Crouch constantly complains about US courts invaliding fake patents that are software patents. Here’s a new example:

For the past several years, I have been conducting an annual patent law moot court competition at Mizzou. This year – the eighth annual – the case was was captioned as an appeal of a recent dismissal by District Court Judge Indira Talwani in Cardionet, LLC v. Infobionic, Inc., 2018 U.S. Dist. LEXIS 177305, 2018 WL 5017913 (D. Mass October 16, 2018). In her decision, Judge Talwani dismissed the case for failure to state a claim — ruling CardioNet’s heart monitor patent is directed to an abstract idea rather than a patent eligible invention. U.S. Patent Number 7,941,207 (“the ‘207 patent”). The moot court is sponsored by McKool Smith and so the winner receives $1,000.

[...]

CardioNet sued InfoBionic for infringement in March 2017. Rather than filing an answer, InfoBionic filed a Motion to Dismiss for “failure to meet the pleading standard of Twombly and Iqbal and for patent ineligibility of the ‘207 patent pursuant to § 101.” While the district court was considering the briefed motion, the Federal Circuit decided Aatrix and Berkheimer but did not permit supplemental briefing regarding material facts at issue in the case. The district court then granted the motion to dismiss with prejudice – finding the claims invalid as directed to an abstract idea. The court explained “the innovation of the … patent may be to use computer equipment and logic to monitor the variability of beats, but nothing in these claims places any limitation on that abstract idea.”

Janal Kalis highlights (as usual) the rare exceptions to the norm, e.g. this PTAB intervention that overturned an examiner’s decision/judgment: “The PTAB Reversed an Examiner’s [Section] 101 Rejection of Claims for a Method of Making an Infeasible Assembly of Parts Feasible: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017003103-10-22-2018-1 …”

Here’s another: “The PTAB Reversed a [Section] 101 Rejection of Claims in an Airbus Defence Patent Application: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010645-09-27-2018-1 …”

Those are very rare. They’re also far less interesting or relevant than Federal Circuit appeals.

We understand that these prominent patent maximalists aren’t happy with PTAB; but their motivation is rather clear; alluding to another PTAB determination of obviousness (escalated to CAFC), Watchtroll wrote:

On Friday, November 9th, the Court of Appeals for the Federal Circuit issued a nonprecedential decision in NuVasive, Inc. v. Iancu, which vacated certain findings of the Patent Trial and Appeal Board (PTAB) in an inter partes reexamination proceeding involving a NuVasive patent covering a system and methods for minimally invasive surgical procedures. The Federal Circuit panel of Circuit Judges Pauline Newman, Raymond Chen and Todd Hughes determined that on the issue of secondary considerations the PTAB erred in finding no nexus between NuVasive’s claimed method and the surgical procedure actually commercialized by NuVasive. The panel also held that further fact-finding was required in order to determine whether an asserted prior art publication teaches a certain nerve-monitoring technique necessary to support the Board’s determination of obviousness. Therefore, the decision of the PTAB was vacated and the case remanded for further proceedings consistent with the Court’s opinion.

[...]

NuVasive asserted the ‘057 patent in an infringement suit filed against Globus Medical in October 2010. The following February, Globus filed the request for the reexamination on claims of the ‘057 patent to determine obviousness based on combinations of four pieces of asserted prior art. In the first office action, the examiner rejected all claims as obvious because all of the references pertained to minimally invasive surgical techniques and a skilled artisan would have found it obvious to combine them to achieve the claimed system and methods.

This is another case of cherry-picking because, based on last year’s year-long statistics, CAFC affirms PTAB’s decisions about 80% of the time (in the rare cases it even expresses willingness to reevaluate).

All in all, we expect to continue to see such attempts to make “scandals” out of nothing, using words like “promiscuity” to characterise PTAB just doing its job, which is to assess patents’ validity after a grant, not just before it.

11.24.18

EPO Nowadays Closely Associates With Site That Attacks, Insults and Calls for Resignations of Judges (Those Who Scrutinise Patents)

Posted in Courtroom, Europe, Patents at 6:20 pm by Dr. Roy Schestowitz

Judge-bashing rhetoric is rather common in the US (recent examples in [1, 2, 3]), but the EPO has brought that to Europe

Fair trial

Summary: After Battistelli’s vicious attacks on courts and attacks on judges it is hardly surprising that the Office finds allies in the very worst of alleys

IT IS hardly surprising that Watchtroll has an account called “European Patent Office” in which EPO press releases (typically lies) are now published. For EPO to associate with this extremist site would not help. Both attack judges, courts, even the law itself. We have already pointed out that the EPO’s official account links to Watchtroll, the Office collaborates with Watchtroll, gives it interviews etc. Watchtroll, as longtime readers of ours know, is a pretty extremist site that habitually attacks the courts and singles out judges for some shaming.

The latest press release that Watchtroll reposted is this nonsense about “sharp rise in patent applications for self-driving vehicles” — seemingly an expensive PR campaign that resembles Battistelli’s misuse of money. The EPO commissions self-promotional ‘studies’ and then presses European media to spread some puff pieces, potentially in exchange for money. In that regard, António Campinos is no better than Battistelli; he also personifies the issues, interjecting his name into the corresponding puff pieces.

In this particular case they are promoting software patents in Europe; the same thing happened yesterday in the patent propaganda blog Managing Intellectual Property which wrote about (mostly) computer vision software patents "on a car" or "in a car", citing a patent troll (Unwired Planet) as an example and promoting FRAND tax:

He adds that companies do not want this same situation for the driverless car market that emerged in the telecoms sector in cases such as Unwired Planet v Huawei.

Beyond this challenge, automotive companies are also compelled to consider future licensing tensions and those that arise from the creation of cross-collaborative projects.

The clash has come about because of the sudden influx of new players into the automotive industry to meet the demand for technologies needed to build driverless cars – from radars and ultrasonic sensors to artificial intelligence software and 5G systems.

As well as big players in the software and telecoms sectors such as Intel or Qualcomm, car companies are working with hundreds or thousands of SME or start-up companies with specialisms in tech specialities such as AI to develop these self-driving cars.

There’s that buzzword again: “AI” (algorithms rebranded as “intelligent”).

We quite frankly worry that the reputation of the EPO has became as appalling as Watchtroll’s (which outside the circle of patent maximalists is regarded as a crude misinformation site).

11.19.18

A Fresh Look at Recent 35 U.S.C. § 101 Cases Reveals Rapid Demise of Software Patents Even in District (Lower) Courts

Posted in Courtroom, Microsoft, OIN, Patents at 5:23 am by Dr. Roy Schestowitz

Summary: Contrary to narratives that are being spread by the patents and litigation ‘industry’, there’s anything but a resurgence of patents on algorithms; in the United States they’re almost always rejected by courts at all levels

THINGS have come along pretty nicely after Alice (SCOTUS) because in light of 35 U.S.C. § 101 the courts are rejecting a lot of software patents, no matter what the U.S. Patent and Trademark Office (USPTO) said or still says. The law is what matters. If the USPTO grants patents which are then used to subvert justice, the USPTO will suffer in the long run.

Let’s start with some examples of recent rulings. A pro-software patents blog implicitly admits — by way of example/s — that software patents are worthless junk nowadays. They’re nearly impossible to defend. Peter Keros wrote about the Southern District of New York rejecting an asserted patent, citing § 101.

A method for analyzing text to determine a strength of an opinion is not patent-eligible subject matter under § 101. Isentium, LLC v. Bloomberg Fin. L.P., 17-cv-7601 (PKC) (S.D.N.Y. Oct. 29, 2018).

U.S. Patent No. 8,556,056 is directed to a multi-step method for evaluating statements that discuss publicly traded assets to determine whether the statement express a positive, negative, or neutral opinion (i.e., a “polarity”) and to assign a strength value to the opinion. Specifically, Plaintiff analyzed Tweets to provide information for financial professionals. The Court granted a 12(b)(6) motion to dismiss the Complaint, holding that the claims of the ‘056 patent were ineligible under 35 U.S.C. § 101.

The Central District of California, according to Nathan Smith, did similarly. Even district courts are growingly fed up with software patents. As Smith explained:

The Central District of California recently granted, in part, a motion to dismiss based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test, in claims of U.S. Patent No. 8,934,535, directed to a method for data compression and decompression. Realtime Adaptive Streaming LLC v. Google LLC, et al., No. CV 18-3629-GW(JCx) (C.D. Cal. Oct. 25, 2018). The court denied the motion for two other patents (U.S. Patent Nos. 9,769,477 and 7,386,046) with claims directed to system of data compression and decompression. The method claims of the ’535 patent were ineligiblebecause the patent failed to state that the claimed method would result in an increased compression speed. Concerning the’477 and ’046 patents, on the other hand, Google failed to show that the claimed systems, which included multiple compression encoders selected for use based on evaluating data, did not impart structural organization to computer processing comparable to the computer memory system in Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017).

Going back again to the Southern District of New York, Bryan Hart wrote about another fake US patent or software patents that § 101 renders obsolete.

Personal Beasties stumbled out of the gate against Nike, with a district court invalidating Personal Beasties’ patent for ineligible subject matter on a motion to dismiss. Personal Beasties Group LLC v. Nike Inc., An animated character—even an encouraging one—did not provide enough to leap the § 101 hurdle.

Personal Beasties accused Nike of patent infringement in the Southern District of New York over U.S. Patent No. 6,769,915 for an “Interactive System for Personal Life Patterns.”

This blog’s sole exception (lately) has been covered by Charles Bieneman. It is from Delware, not the higher court, so this case/outcome can still be overturned on appeal (CAFC is tougher):

Patent claims directed to mapping “a physical location determined by the user . . . to a video game environment” have survived a Rule 12(b)(6) motion alleging patent-ineligibility under 35 U.S.C. § 101 and the Alice patent-eligibility test. Blackbird Tech LLC v. Niantic, Inc., No. 1-17-cv-01810 (D. Del. Oct. 31, 2018). U.S. Patent No. 9,802,127 allows a user to “experience[] objects from the users [sic] entered location while playing the video game.”

[...]

In arguing for application of the Aliceabstract idea test, the defendant took a broad approach in alleging an unpatentable abstract idea: arguing “that the ’127 patent claims are directed to the abstract idea of ‘receiving, processing, and displaying or storing location information.’” The defendant argued that its motion should be decided like a Rule 12 motion in a 2016 Colorado case, Concaten, Inc. v. Ameritrack Fleet Solutions, LLC, which held patent-ineligible claims directed to providing data to assist in snow removal.

But the court here disagreed, because here “[t]he mapping application requires taking camera images of a real physical space, where the user is located, and integrating those images as a video into a virtual video game environment.” Moreover, “the mapping step here is tethered to specific instructions” specifying images to be mapped, their locations, and how to display them. Citing Enfish, LLC v. Microsoft Corp. (Fed. Cir. 2016), the court found that the defendant’s proposed abstract idea was too broad, applying “an inappropriate level of abstraction such that its description of the claims is ‘untethered from the language of the claims.’”

Verizon, over at the Eastern District of New York, is mentioned by the patent maximalist Matthew Bultman, who explains that the Federal Circuit is sane/rational/honest enough to explain why patent lawsuits must be filed in the appropriate venue. From the outset:

Verizon subsidiary Oath Holdings Inc. does not have to defend a patent lawsuit over advertisement technology in the Eastern District of New York, the Federal Circuit ruled Wednesday

Not only Verizon grapples with such patent cases; see Motorola’s new press release and shallow press coverage that says: “The U.S. International Trade Commission (ITC) affirmed an administrative law judge’s finding that Hytera Communications of China infringed several Motorola Solutions patents.”

As background to the Hytera case consider this old post of ours; the ITC got involved, leaning towards the American complainant, as usual. Microsoft turned to it over a decade ago when it sought to embargo rival products (mice).

Citing a case just over a month old (October 16th), Bradley Arant Boult Cummings LLP’s Ryan Letson covered in JD Supra and Lexology [1, 2] yet another invalidation based on 35 U.S.C. § 101:

Add internet telephony systems to the list of computer-related technologies considered for patent eligibility under 35 U.S.C. § 101. Under current law, among other requirements, in order to qualify as patent-eligible under § 101, a patent claim involving computer-related technology must be directed to something more than simply an abstract idea that fails to implement an inventive concept. A patent’s claims will fail this test if a court finds that they are simply directed to “method[s] of organizing human activity” or “a known idea” that “is routine and conventional.”

High courts continue telling/signaling to the Office that software patents are bunk, but will the officials at the Office pay attention or just ignore if not ‘diss’ the high courts?

Writing about Ancora’s case against HTC, Michael Borella has just taken note of another 35 U.S.C. § 101 case (one that many wrote about because of the unusual outcome):

Ancora sued HTC in the Western District of Washington alleging infringement of U.S. Patent No. 6,411,941. HTC moved to dismiss the case, contending that the claims of the patent were ineligible under 35 U.S.C. § 101. The District Court granted HTC’s motion. Ancora appealed to the Federal Circuit.

The ’941 patent is directed to mechanisms for preventing a computer from running unlicensed software. While using license keys to control software was well-known at the time of the patent’s earliest priority date (1998), the patent purports to do so in a rather unusual fashion (for that time).

[...]

On appeal, the Federal Circuit rapidly answered the patent-eligibility question in the positive. Relying on recent precedent, such as Finjan, Inc. v. Blue Coat System, Inc., the Court stated that “[i]mproving security—here, against a computer’s unauthorized use of a program—can be a non-abstract computer-functionality improvement if done by a specific technique that departs from earlier approaches to solve a specific computer problem.”

The Court went on to disagree with the District Court, noting that the claim does recite storing the verification structure in a section of BIOS with certain beneficial characteristics, which was asserted to be an unexpected technique at the time of invention. Thus, in the view of the Federal Circuit, the claim does not recite a mere desired outcome, but how to achieve this outcome. Further, the claim addressed a technological problem associated with computers — software license verification — rather than a business, mathematical, or financial problem.

Notice that Finjan got cited. It’s relevant to this because of an exceptional high court (CAFC) judgment from the start of this year. We wrote about it several times at the start of 2018. Finjan is connected to Microsoft. This patent troll had a shareholders’ conference not so long ago. Did Microsoft give some more money to this troll any time lately? Firms (litigation pipelines would be a more suitable description) like Finjan definitely help Microsoft sell ‘protection’ and Finjan always sues Microsoft’s competition. When Microsoft joined OIN some weeks ago it kept promoting Azure as the ‘safe’ (from its patent trolls) option. “Abusix Joins Open Invention Network as Licensee” is the title of this new press release, joining the likes of many recent articles regarding OIN (this for example; it has been circulating lately). Abusix will get virtually nothing out of it, except assurance of no direct lawsuit from particular non-troll companies (except indirectly). It is worth noting that a Microsoft-connected propaganda site last week spoke about FOSS, which it is trying to wed (a shotgun wedding) to software patents.

Going back to the aforementioned HTC case, Matthew Bultman explained it as follows: “The Federal Circuit on Friday reversed a lower court ruling that a computer security patent asserted against HTC Corp. is invalid under the U.S. Supreme Court’s Alice standard, saying the patent…” (paywall hereon).

“Fed. Circ. Revives Computer Security Patent Axed Under Alice” is the headline and noteworthy is the word “revive” here; It was used by Suzanne Monyak as well as her colleague Matthew Bultman almost at the same time (“Fed. Circ. Won’t Revive Xactware Patent Challenges” was the headline). They try to insinuate that fake patents that should never have been granted in the first place got ‘killed’ or ‘murdered’ or something equally criminal.

“The Federal Circuit on Tuesday refused to revive Xactware Solutions Inc.’s challenges to two patents related to aerial rooftop measurement software,” Monyak wrote, “rejecting the company’s bid to nix two Pictometry International Corp…”

Noteworthy were the responses from patent maximalists. Janal Kalis quoted the filing: “the claimed advance is a concrete assignment of specified functions among a computer’s components to improve computer security, and this claimed improvement in computer functionality is eligible for patenting. As a result, the claims are not invalid under § 101.”

He also took note of “Another Very Creepy Facebook Patent Application; This one killed at the PTAB with 101; Run, Don’t Walk Away from Facebook: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001718-10-22-2018-1 …” (and as we mentioned yesterday, there’s this bunch of articles with headlines like “Who lives with you? Facebook seeks to patent software to figure out profiles of households”).

What’s noteworthy in all the above is that it’s very rare nowadays for software patents to withstand 35 U.S.C. § 101, even in the face of the Berkheimer and Aatrix nonsense (or hype).

“Aatrix Expands Their Payroll Tax Reporting Offerings,” said a widely-spread new press release [1, 2]. It was published a few days ago. It’s another one of many which take note of the software patents. Aatrix has become associated with software patents predation and Aatrix the company might find it hard to dissociate from it (like Alice and Bilski).

“Apprenda sells assets for $1.55 million,” says this new headline, even though software patents are not an “asset” but an illusion thereof as they’re useless and immaterial.

As we approach 2019 we must wonder how many companies still think that it’s worth pursuing software patents in the US.

11.15.18

Ignoring and Bashing Courts: Is This the Future of Patent Offices in the West?

Posted in America, Australia, Courtroom, Europe, IBM, Patents, Red Hat at 11:03 am by Dr. Roy Schestowitz

President Battistelli went as far as publicly attacking and threatening judges — the hallmark of President Donald Trump

Trump and Iancu

Summary: Andrei Iancu, who is trying to water down 35 U.S.C. § 101 while Trump ‘waters down’ SCOTUS (which delivered Alice), isn’t alone; António Campinos, the new President of the EPO, is constantly promoting software patents (which European courts reject, citing the EPC) and even Australia’s litigation ‘industry’ is dissenting against Australian courts that stubbornly reject software patents

BOTH the European Patent Office (EPO) and the U.S. Patent and Trademark Office (USPTO) have been granting software patents in spite of 35 U.S.C. § 101 and in spite of software patents in Europe being de facto banned (bar loopholes that António Campinos is happy to exploit and even expand).

“This merely lowers confidence in US patents and, accordingly, lowers their collective worth.”Mr. Iancu, the ‘American Battistelli’, will soon be a speaker at the IP Awareness Summit (IPAS), which is an indoctrination/lobbying campaign set up by parasites who cause as much litigation as possible, making themselves ‘necessary’. IPAS is promoted by various sites of patent lawyers this week. Here’s one that takes note of Iancu’s participation:

US Under Secretary of Commerce for Intellectual Property and Director of the US Patent and Trademark Office (USPTO), Andrei Iancu, will speak at the event.

Looking at the past week’s news regarding software patents, we can’t help but notice that the Andrei Iancu-led Office is again issuing fake patents or software patents that courts would almost certainly reject. They just never learn, do they? This merely lowers confidence in US patents and, accordingly, lowers their collective worth. Here’s a new press release about a new patent grant on how to “correlate across static analysis so that development teams can fix one bug, push this fix down the line, and seamlessly remediate multiple vulnerabilities within the code.”

“Looking at the past week’s news regarding software patents, we can’t help but notice that the Andrei Iancu-led Office is again issuing fake patents or software patents that courts would almost certainly reject.”How is that not a software patent? IBM, we should probably add, is still patenting software. Red Hat’s takeover is not looking good in light of IBM’s software patents policy, which remains unchanged. IBM’s software patents (or filings thereof) on management of patents have gotten a ton of press coverage; earlier this week there were over a dozen articles like [1, 2, 3, 4, 5, 6, 7, 8], probably because of the “Blockchain” factor alone. The patent trolls’ lobby (IAM) thinks that IBM will use/adopt Red Hat patents in the usual ways (IBM is a longtime patent bully). “The open source business’s portfolio is not big,” IAM wrote about Red Hat’s patents, “but should bolster Big Blue’s attempts to bridge the gap with Amazon, Google and Microsoft in a space that is rapidly growing in importance.”

Red Hat should never have pursued software patents in the first place; now all these patents are at the hands of the corporation that lobbies the most for software patents. We warned about it. Some Red Hat employees even sympathised with our warnings.

“Red Hat should never have pursued software patents in the first place; now all these patents are at the hands of the corporation that lobbies the most for software patents.”Over at the EPO the situation isn’t so promising either because earlier today the EPO once again promoted (as usual) software patents using hype waves (like “Blockchain”). “This conference will explore the IP protection & patenting of #blockchain technology and of its applications in different technical fields,” it said. It’s about software patents. It also did the usual “SDV” thing, writing: “European patent applications related to autonomous driving have grown 20 times faster than those across all technologies.”

Many of those are software patents pertaining to algorithms running on a computer inside a car. The EPO hopes that by emphasising “cars” it’ll successfully make such algorithms look/sound “physical” or “technical” or whatever.

We should probably mention, at least as a side-/sub-note, that SUEPO has removed yesterday’s post about USF (covered in this post of ours). Did the EPO under António Campinos once again threaten them? It happened before. If someone with contacts/connections to SUEPO can ask them why they removed that page and then tell us, we’ll appreciate it. If SUEPO was forced to remove links about unions, there would be something poetic about it (like censorship of information about censorship).

“It is noteworthy that in some of the largest “Western” economies (we recognise that Australia isn’t in the West, but it’s heavily influenced by the Western ‘bloc’) the courts say “no!” to software patents, yet the only ones complaining about that are those who profit from litigation.”Last but not least, posted behind paywall today was this piece titled “Computer Software Inventions Patentability Case Has Got IPTA’s Patents in a Bunch” (slang). It says: “A high profile appeal to the Full Court of the Federal Court of Australia about the patentability of computer inventions could reset the IPTA’s bar on the…”

As a reminder, the Australian legal system nowadays rejects software patents (see our wiki under Australia), so Macpherson Kelley’s Mark Metzeling and Mitchell Willocks (i.e. the patent litigation ‘industry’) keep bashing courts etc. to promote bogus patents and IPTA's clients. It is noteworthy that in some of the largest “Western” economies (we recognise that Australia isn’t in the West, but it’s heavily influenced by the Western ‘bloc’) the courts say “no!” to software patents, yet the only ones complaining about that are those who profit from litigation. They occasionally smear judges and courts (we find new examples every week).

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