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08.15.18

Antiquated Patenting Trick: Adding Words Like ‘Apparatus’ to Make Abstract Ideas Look/Sound Like They Pertain to or Contain a ‘Device’

Posted in America, Deception, Patents at 4:20 am by Dr. Roy Schestowitz

Apparatus

Summary: 35 U.S.C. § 101 (Section 101) still maintains that abstract ideas are not patent-eligible; so applicants and law firms go out of their way to make their ideas seem as though they’re physical

THE examiners at the USPTO have been instructed (as per Section 101/Alice and examination guidelines) not to grant abstract patents, which include software patents. This means that applicants and the law firms whom they pay to ‘game’ the system will go out of their way to rephrase things, making life harder for examiners.

RichmondBizSense‘s patent listings, published only a few hours ago, include “Method and apparatus for context based data analytics” (analysis or analytics using algorithms).

“We certainly hope that examiners are clever enough to spot these tricks; the underlying algorithms do not depend on a device and aren’t strictly tied to any; they can run on any general-purpose computer.”Notice how they titled it; “apparatus” is just the same old trick (like “device”) for making abstract ideas seem physical. Lawyers’ tricks like these fool the examiners. “Device”, at least in the EPO, is the weasel word quite often used to make patents look less “as such” (or “per se” as they phrase it in India). We certainly hope that examiners are clever enough to spot these tricks; the underlying algorithms do not depend on a device and aren’t strictly tied to any; they can run on any general-purpose computer.

Watchtroll’s latest attack on 35 U.S.C. § 101 (this time Jeremy Doerre again, for the second time in a week) shows that patent quality is the real threat to these maximalists/extremists. They dislike justice, love litigation, and Section 101 is therefore a threat to them. Maybe they will just attack SCOTUS again later this week. Judge-bashing has become pretty common at Watchtroll.

Janal Kalis, another patent maximalist, wrote about “apparatus” this week:

The PTAB Affirmed an Examiner’s 101 Rejection of Claims for an Apparatus for Material Analysis: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010532-07-31-2018-1 …

Maybe the applicant thought that a generic/broad word like “apparatus” would be enough; maximalists like that word, but in this particular case it fooled neither the examiner nor the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR). There are many more like this; it’s quite the norm these days, tackling software patents and other abstract patents at the examination level with help/affirmation from PTAB.

Yesterday Dennis Crouch wrote about PTAB and an examiner rejecting a lousy Facebook patent. He probably (cherry-)picked it because this time, for a change, the Federal Circuit did not fully agree; it reversed and remanded the decision.

“Maybe the applicant thought that a generic/broad word like “apparatus” would be enough; maximalists like that word, but in this particular case it fooled neither the examiner nor the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR).”To quote: “Facebook’s U.S. Patent Application No. 13/715,636 claims a method for displaying a set of images after reshuffling or resizing the images. The Examiner rejected Claim 1 (below) as anticipated; and that rejection was affirmed by the Patent Trial and Appeal Board. Now on appeal, the Federal Circuit has reversed and remanded — finding that the USPTO had too loosely interpreted the prior art.

“The claimed image rendering process begins with a sequence of images. Each image is assigned a “first position” within an “array of contiguous image elements” — in other words, the images are put in a particular order. When a user adjusts the position or size of an image — there may be a need for reshuffling of the images into “second positions.” The claimed method includes a requirement that the reshuffled sequence “be contiguous.” — i.e., no gaps in the array.”

How is that not abstract? Never mind prior art, which was the basis for the original rejection…

08.14.18

Berkheimer Changed Nothing and Invalidation Rates of Abstract Software Patents Remain Very High

Posted in America, Deception, Patents at 7:31 am by Dr. Roy Schestowitz

Weight comparison

Summary: Contrary to repetitive misinformation from firms that ‘sell’ services around patents, there is no turnaround or comeback for software patents; the latest numbers suggest a marginal difference at best — one that may be negligible considering the correlation between expected outcomes and actions (the nature of risk analysis)

THE QUALITY of patents at the USPTO (existing and newly-awarded ones) isn’t great, but at least it seems like it’s improving and the number of patent grants is declining (at long last).

“Sadly, some people who write on patent matters are willfully clueless…”The psyche or mentality surrounding patents ought to change. Not all patents represent innovation and some kinds of patents actively suppress innovation. It’s not even a controversial premise as many scholars have shown just that, even empirically.

“Microsoft’s New Patent Will Let You Communicate With Others In 3D,” said a headline from yesterday, but patents don’t “let” anything. They restrict. Sadly, some people who write on patent matters are willfully clueless (this site is generally awful in its coverage on most topics because the writers don’t specialise in the areas they cover; they do Microsoft ‘ads’ a lot of the time, under the banner of “FOSS”)

“Apple Could Let You Store Your Passport on an iPhone,” said another new headline, misusing that word “let” again. Patents are not about “letting” but about monopolising. Another new article about Apple patents talks about so-called ‘Augmented Reality’ (buzzword); it’s a patent or at least an application that we wrote about over a weekend. It’s abstract, sure, but with trendy terms like ‘Augmented Reality’ (or AR for short) will examiners see that? Andrew Rossow, in the meantime, found the “blockchain” hype; he uses it to advance his professional agenda, which he calls “Intellectual [sic] Property [sic] Rights [sic]” right there in the headline. It’s outright ridiculous, but this is the kind of press coverage we find about patents. Some of it is composed by lawyers and the rest just repeats claims made by companies (without applying some critical thinking). A lot of it is just “buzzwords salad” — a subject we tackled on Sunday and Monday in relation to software patents.

“For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents.”What we really care about isn’t what patent examiners say but what patent judges say; it’s them (the latter) who have the final word, provided the accused can afford legal defense and a day (sometimes a year or more) in court.

For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents. They do so after Iancu’s appointment as much as (or almost as much as) they did a year ago, i.e. before his name was even brought up. Christopher King (writing in Fenwick & West Blogs) has just published another one of these dishonest #ALICESTORM posts. Those are not objective at all. Do they even try to hide their bias?

Here’s the key figure (among more):

The overall percentage of decisions invalidating patents under § 101 since we started tracking statistics in July 2014 has fallen slightly—from 67.5% to 66.0%—year over year.

The decline is very minor and there may be simple explanations for it. This may be noticeable (albeit barely) simply because fewer software patent ‘owners’ even bother anymore. They know they haven’t much of a chance ‘against’ § 101, so only the ‘stronger’ patents wind up in court.

As for caselaw, virtually nothing has changed. Nowadays some law firms attempt to attribute the minor decline to Berkheimer. That now looks foolish, especially in light of detailed statistics. “Berkheimer Effect” (as some patent maximalists wanted to dub it) or ‘pulling a Berkheimer‘ is useless. To quote: “Ironically, however, of the 25 decisions citing Berkheimer, 15 found invalidity, with only 10 finding validity, a higher invalidation rate than that of the recent cases not citing Berkheimer. Apparently courts primarily cite Berkheimer in order to acknowledge it before distinguishing it!”

“Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline.”So bringing up Berkheimer — one might semi-joke — actually reduces the chance of a favourable (to the plaintiff) judgment. Isn’t that hilarious? The numbers don’t support the assertions made by lawyers over the past 6 months. The numbers themselves suggest so. And so they spin facts. Next time someone like Iancu brings up his Berkheimer ‘memo’ we’ll surely point out that underlying facts aren’t on his side (pun intended, given the nature of the Berkheimer decision). Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline. He cannot just abolish Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) either, not after SCOTUS defended IPRs in Oil States.

Lockton Insurance Brokers Exploiting Patent Trolls to Sell Insurance to the Gullible

Posted in Deception, Microsoft, Patents at 6:40 am by Dr. Roy Schestowitz

LocktonSummary: Demonstrating what some people have dubbed (and popularised as) “disaster capitalism”, Lockton now looks for opportunities to profit from patent trolls, in the form of “insurance” (the same thing Microsoft does [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20])

EARLIER THIS month (at the very start of it) Managing IP surprised us by speaking of “IP insurance”; there are actually companies out there that offer insurance from lawsuits over things that don’t even exist (unlike car accidents or natural disasters). We hadn’t quite seen this before. Then, only yesterday, San Francisco Business Times published this ‘article’ (more like an ad, ending with “Questions about patent infringement insurance for your company? Give us a call at 415-[redacted].”) and it was composed by Adam McDonough, “Executive Vice President, Lockton Insurance Brokers” (by his own words).

“They create threats and fears in order for them to sell their ‘solutions’.”So they’re now using/leveraging patent trolls for profit; they are selling the scam which is ‘insurance’ for patents. It’s similar but not identical to things like RPX, which nearly collapsed because patent trolls are on the demise/decline in the US. It’s a form of ‘protection’ money; they’re selling mercenaries in a village with the Mafia embedded in it; once the authorities weed out the trolls (the Mafia), demand for the mercenaries is no longer there.

The headline of the above article is “Patent insurance allows companies to focus on innovating, not competitors and trolls”; this is similar to Microsoft’s “IP Advantage”; Microsoft keeps feeding trolls while offering ‘protection’ from them.

If or when we spot more articles (ads) along those lines, we’ll surely point these out. It is ridiculous if not outrageous, and in some sense it’s an extension of a parasitic ‘industry’ akin to the one Black Duck is exploiting. They create threats and fears in order for them to sell their ‘solutions’.

08.09.18

Propaganda Sites of Patent Trolls and Litigators Have Quit Trying to Appear Impartial or Having Integrity

Posted in Africa, Deception, Marketing, Patents at 2:20 pm by Dr. Roy Schestowitz

The lobbying groups for patent trolls try to appear like diverse professionals, but they’re actually paid marketing/PR fronts

Mixed team

Summary: The lobbying groups of patent trolls (which receive money from such trolls) carry on meddling in policy and altering perception that drives policy; we present some new examples

THE EPO has long used IAM as a propaganda front. As for the USPTO, its connections to Watchtroll have always been worrying (e.g. former USPTO officials who now profit from lawsuits).

“They are basically a megaphone of trolls with misleading/promotional headlines (also big — if not imaginary — sums of money).”Christal Sheppard will work for the world's most awful patent troll, based on this press release that Watchtroll published the day before yesterday (we presume paid PR, based on the labeling) and Finjan, another patent troll, nowadays pays IAM. In return, IAM continues to write puff pieces for this disgusting Microsoft-connected troll; the troll even gets keynotes/speaking positions from IAM. Such is the nature of these publications/blogs. They are basically a megaphone of trolls with misleading/promotional headlines (also big — if not imaginary — sums of money). As a reminder, IAM is not a news site, but Google treats it as one nonetheless. Case of point is this week’s blog post that says:

There was little surprise in the numbers that Finjan recently announced for the second quarter. Revenue for the first half of the year soared to $82.3 million, an increase of more than 200% year-on-year. This was thanks in large part to the company’s settlement with Symantec, but also helped by additional agreements with Carbon Black and Trend Micro. Net income for the half year also saw a correspondingly large jump to $36.3 million, an increase of almost 177% as the business generated $65 million.

The whole thing reads like an ad for the troll; they’re talking about patent blackmail and they try to make a case for sponsoring this troll (as Microsoft did). Joff Wild, IAM’s chief editor, is already preparing the next lobbying event. He’s raising money from patent trolls. This lobbying group of patent trolls says that “Just a week after the US mid-term elections, the 4th Patent Law and Policy event couldn’t be more timely” (pressure group in action, timing events to impact policies). Quoting Wild:

With two of those decisions – Oil States and SAS Institute – involving the Patent Trial and Appeal Board, we will have two panels focused on post-issuance reviews – including how stakeholders should change their PTAB strategies in light of SAS.

If all of that isn’t enough we will also be asking a panel of experts to weigh in on the thorny issue of standard essential patents and what exactly constitutes FRAND. Given that the Trump administration has changed tack, markedly, on that issue there will be much to discuss.

They will try to attract to this event officials and people who might report on it, reaching the eyes and ears of politicians. Days ago we published "Agenda and Lies From Watchtroll Make It Into the Bill of Rohrabacher, the “Inventor Protection Act”"; well, guess what Watchtroll published only hours ago; it’s like they’re think tanks that help their sponsors craft bills/legislation, pushing these in their events based on lies. There needs to be a more coordinated response to these front groups, which are disguised as sources of news. Watchtroll and IAM do appear among search results and IAM seems to be paying extra money to reach more feeds. We know where that money comes from.

Months After Oil States the Patent Maximalists Still Try to Undermine Inter Partes Reviews (“IPRs”), Refusing to Accept Patent Quality

Posted in America, Courtroom, Deception, Patents at 1:48 pm by Dr. Roy Schestowitz

They want SCOTUS to reassess an IPRs case just months after it assessed two such cases, dealing a major blow to opponents of patent quality

A depressed man

Summary: The patent maximalists in the United States, seeing that the USPTO is moving away from patent maximalism, is desperate for a turnaround; prominent patent maximalists take it all out on PTAB

Patent maximalism is hinged on the misguided belief (or lie) that the more patents are granted and the more companies get punished for simply minding their own business, the better off supposed ‘innovation’ will be (they actually allude to lawyers’/attorneys’ fees, not innovation).

New case of point? Johnstech International Corp. v JF Technology Berhad et al. They’re now pursuing a punishment for selling products which were made before an alleged patent infringement was ‘proven’ and before appeal (this is just a district court, which is the lowest court for such disputes). As Patent Navigator put it some hours ago:

Following a jury verdict of willful infringement, the court granted in part plaintiff’s motion for enhanced damages and increased the damage award by 25% because one-quarter of defendant’s sales at issue took place after the verdict.

Does this jury understand the subject matter? Was the patent already tested ‘back’ at the USPTO? Can it?

At Kluwer Patent Blog (proponent of UPC and EPO patent maximalism) Brian Slater promotes the patent maximalism agenda for the US. It was published earlier today. This is an agenda which involves trying to weaken if not thwart Patent Trial and Appeal Board (“PTAB”) inter partes reviews (“IPRs”) because they elevate the quality of granted (by the USPTO) and enforced (in courts) patents, e.g. using 35 U.S.C. § 101, only to be affirmed by the Federal Circuit if/when an appeal is allowed.

Alluding to Oil States, Slater wrote that the IPR process is “Here to Stay in Modified Form”. To quote:

In a previous post here, we described constitutional and procedural challenges to inter partes review (“IPR”) in the Oil States and SAS Institute cases taken up by the U.S. Supreme Court. We also posted here on Allergan’s attempt to avoid an IPR by assigning its challenged patents to an American Indian tribe that claims tribal sovereign immunity, an apparent insurance policy in case the Supreme Court upheld the constitutionality of IPR. In April, as widely-anticipated, the Supreme Court rejected the constitutional challenge to IPR in the Oil States case. However, Allergan’s insurance policy may never pay out – in late July, the Court of Appeals for the Federal Circuit rejected the applicability of tribal sovereign immunity to IPR. Thus, IPR is here to stay for the foreseeable future and the tribal sovereign immunity play looks to be on its last legs. There is, however, one crumb of comfort for critics of IPR – the Supreme Court’s SAS Institute decision, also in April, requires that the Patent Trial and Appeal Board (“PTAB”) decide the patentability of all patent claims challenged in an IPR once it is instituted. That decision overrules the prior PTAB practice of deciding the patentability of only the claims on which IPR was instituted – so called “partial institution”.

They keep trying to water down the rules and weaken the process, but thus far they haven’t been successful. Citing Oil States, patent maximalists such as Dennis Crouch are now looking for some ways to undermine IPRs and reduce quality of patents. Crouch looks at a new SCOTUS cert petition (request for the Supreme Court to weight in) in Advanced Audio Devices, LLC v HTC Corp.:

In Oil States, the patentee lost its broad challenge to the AIA Post Issuance trial system. However the majority opinion penned by Justice Thomas hinted that other collateral attacks on the system could find more success. Particularly, the court wrote that “our decision [finding that patents are public rights] should not be misconstrued as suggesting that patents are not property for purposes of the Due Process Clause or the Takings Clause.”

[...]

The Advanced Audio petition adds the additional twist that its patents were filed pre-AIA.

That does not matter. PTAB has already dealt with many patents which predate AIA, not just PTAB itself. It even uses Section 101 to invalidate patents predating Alice. This happened plenty of times. Cert petitions like these present nothing new; SCOTUS will likely decline.

The Unified Patent Court (UPC) Agreement is Paralysed, So Team UPC is Twisting Old News

Posted in Deception, Europe, Patents at 1:17 pm by Dr. Roy Schestowitz

UPCA paralysis

Summary: Paralysis of the Unified Patent Court Agreement (UPCA) means that people are completely forgetting about its very existence; those standing to benefit from it (patent litigation firms) are therefore recycling and distorting old news

THE FIRST step of António Campinos as EPO President was UPC promotion, which includes attacking constitutions across many countries in Europe. Since then the EPO has been promoting software patents virtually every day (sometimes more than once per day) in spite of the ban in Europe. So it’s like the pertinent laws and truth itself don’t matter to the EPO. It’s like Battistelli is still in charge, but his face looks a little different now (nationality is the same).

“Actually, the United Kingdom does not want the Unified Patent Court; it’s just a bunch of law firms with a powerful lobby like CIPA that wants it and misrepresents SMEs, the country at large, and people who actually work in science and technology.”We have stumbled upon quite a few Unitary Patent puff pieces this week. IAM’s UPC propaganda mill was today’s biggest culprit. It’s like that same old UPC propaganda which the EPO’s PR agency paid IAM for.

Some hours ago David Holland, Roger Lush and Melanie Stevenson (Carpmaels & Ransford LLP) overlooked major UPC barriers. Citing UK-IPO (which is biased for obvious reasons), they promote/perpetuate two famous lies and say: “Looking to the future, the government proposes that the “UK should continue to participate in the unitary patent system and the Unified Patent Court that underpins it”, confirming the United Kingdom’s long-held desire to participate in this new pan-European system.”

Actually, the United Kingdom does not want the Unified Patent Court; it’s just a bunch of law firms with a powerful lobby like CIPA that wants it and misrepresents SMEs, the country at large, and people who actually work in science and technology. This is what happens when law firms write “the news”; it’s just marketing and lobbying. Speaking of law firms, hours ago Jörg Prechtel (Weickmann & Weickmann PartmbB) wrote this piece about the UPC, missing the point that the principal issue with UPC, as per the constitutional complaint in Germany, isn’t just conditions for renewal of judges’ contracts but the EPO having a long track record of breaking the law, attacking judges, and defaming them. Prechtel wrote this:

On 18 March 2018 the Federal Constitutional Court in Karlsruhe permitted the appointment of judges for a limited time (Richter auf Zeit), but only under specific conditions (Docket 2BvR 780/16).

This decision may affect a pending constitutional complaint against the UPC Agreement (for more information please see “Constitutional complaint against UPC Agreement”), since Article 4 of the Statute of the UPC provides that judges may be appointed for a limited time (six years) and can be re-appointed.

[...]

In light of this decision, the court’s stance regarding the UPC Agreement remains uncertain. While it considers the employment of Richter auf Zeit admissible in principle, there are restrictions (ie, temporary personnel requirements and the prohibition of re-appointment).

However, since the court system proposed by the UPC Agreement is international, the Federal Constitutional Court may not apply its strict national standards.

They are just trying to influence the outcome of the constitutional complaint against the UPC Agreement (UPCA); they’re not even good at hiding it. There are apparently four components to this complaint and it may not be decided/ruled on before next year or 2020. In the meantime UPCA languishes to the point where Team UPC has nothing at all to report; all they do is spin of old news.

08.06.18

Agenda and Lies From Watchtroll Make It Into the Bill of Rohrabacher, the “Inventor Protection Act”

Posted in America, Deception, Patents at 12:59 am by Dr. Roy Schestowitz

Watchtroll Great Again

Summary: The Patent Trial and Appeal Board (PTAB) is being demonised using falsehoods or patently false numbers, which are pushed into various news feeds by the anti-PTAB lobby (representing the interests of patent trolls and aggressors as well as their lawyers)

THE LOBBYING fronts of patent maximalists, those who attack judges and USPTO officials, seem to have accomplished something.

According to Josh Landau (CCIA), lies from Watchtroll are making it into legislation efforts, in the same ways that lies from IAM make it into the EPO‘s Web site. So a villainous site that acts as a front group of patent extremists ended up being used by dishonest politicians whom patent extremists use to perturb the law. To quote Landau:

The Rohrabacher bill appears to be relying upon IP Watchdog’s numbers here. (This isn’t the first time incorrect numbers from IP Watchdog have made it to Congress.) The PTAB is not invalidating 85% of patents challenged in post-grant reviews. In calculating the rate at which patents are invalidated in post-grant reviews, IP Watchdog excludes the significant number of patents where the PTAB said that not only is this patent valid, but it is so clearly valid that the petitioner hasn’t even been able to show a reasonable likelihood of invalidity—the roughly 35% of patents where the PTAB doesn’t institute a review at all.

Once those patents are included, what’s the real answer?

The Patent Trial and Appeal Board declares around 45% of challenged patents to be invalid. Given that challengers pick and choose which patents they want to challenge based on the likelihood of success, that number isn’t surprising at all—the patents where validity isn’t really in question never get challenged in the first place.

Claiming that the PTAB invalidates 85% of granted patents it reviews is simply false.

[...]

Another error in the proposed findings is that “most inventors cannot afford the costs of defending a patent challenged in a single post-grant review, as these costs can reach hundreds of thousands of dollars.”

First off, this ignores that roughly 80% of patents are invented at large companies. Those inventors and their companies can afford the costs of defending a patent challenge. The findings claim to be about inventors, but exclude the vast majority of American inventors.

It is correct that the cost of a post-grant review can reach hundreds of thousands of dollars. AIPLA’s survey estimates a median price of around $250,000 to defend a patent in a post-grant review.

But you can’t look at that in a vacuum. Post-grant reviews are almost always filed against patents that are being litigated—85% of post-grant challenges have related district court litigation (and many of the other 15% are related to litigations more indirectly). And litigation costs far, far more—even an inexpensive litigation can easily run into seven figures. In reality, the availability of IPR and other post-grant reviews has actually saved patent owners more than $1 billion in legal fees since it was made available by reducing the cost of litigating patents overall.

[...]

The bill also states that “Inventors are denied the fundamental right to ‘exclude others’.” This finding is made despite recent decisions like Tinnus v. Telebrands in which an inventor was not only granted an injunction but a preliminary injunction. In reality, inventors can exclude others in the same circumstances that they can do so in every area of law—when they meet the traditional common law test for an injunction.

Far from restoring a fundamental right, Rohrabacher’s bill criticizes the long-standing principle that injunctions issue when appropriate, not whenever they’re asked for.

Landau continued in the second part the following day. Some relevant portion:

The next provision is by far the most concerning in the entire bill. Normally there’s a bit of hyperbole involved when someone says “this bill would destroy the incentive to innovate.” In the case of Rohrabacher’s bill, that’s not hyperbole—it’s simple math.

That’s because, if the Inventor Protection Act passes, inventors would be entitled to the greater of total profits or 25 percent of gross sales revenue attributable to the patent.

As a little history lesson, utility patents used to allow a total profits remedy. Congress abolished that in 1946, after realizing that a total profits rule was unworkable with the complex technology of the time. Technology has gotten more complicated since 1946, which makes it unclear why reviving the total profits rule is a good idea now.

But total profits isn’t the worst part of this provision. The worst part is entitling inventors to “25 percent of sales.” That means that, if a product infringed 4 patents, the manufacturer could be liable for every dollar they had ever received in sales.1

To put that in perspective, Apple lost a patent lawsuit a few months ago. They were ordered to pay $500 million dollars to VirnetX for their use of 4 patents, covering FaceTime, iMessage, and VPN on Demand. That’s a big verdict.

But if the inventors had owned those patents at the time of suit, Apple might instead have had to pay over $200 billion dollars. I don’t think anyone would call that the right outcome.

While the inventors had transferred their patents by that point, VirnetX could easily have sought out the inventors and sold them their patents back with the promise of a delayed payment back to VirnetX if the inventors won the lawsuit. Similar tactics have been used before in what’s known as “privateering,” and VirnetX may itself be the result of a privateering arrangement. In addition, VirnetX could have transferred the patents but funded the litigation, with the inventors agreeing to pay VirnetX back with interest or with a percentage of their winnings—another common arrangement called litigation finance.

Given the ease with which an NPE could take advantage of these benefits that were designed to accrue to inventors, there’s every reason to think they would do exactly that.

And when 4 patents can wipe out not just every bit of profit you made but actually eliminate every last bit of revenue? There’s no reason to create anything new in the U.S. anymore. If you’re worried about competition from China, the last thing you want to do is create a rule that ensures that creating complex technology in the U.S. is almost guaranteed to be unprofitable.

There’s also something of relevance to this in Patent Docs, a PTAB-hostile site. James Korenchan and this patent maximalists’ site explore the possibility of disguising software patents as “GUI” to bypass the law and patent software anyway (post-Alice/Section 101). Nitpicking an examiner-level ‘case’ (it’s not even a case), Korenchan wrote:

Navigating the post-Alice patent-eligibility landscape with graphical user interface (GUI) claims can be trying, particularly when fighting to maintain desirable breadth. As with all software-related claims, limitations must raise GUI claims (and other types of UI claims, for that matter) beyond fundamental designs and implementations, root the invention in computer technology, and provide a specific, innovative solution to a technological problem. In the past four years, the Federal Circuit has provided some guidance for GUI claims, perhaps most notable being the recent Core Wireless decision. In Core Wireless, the Court essentially stated that, to overcome the scrutiny of 35 U.S.C. § 101, a GUI claim should describe the specific functionality and/or layout of the GUI, and in addition, the patent’s specification should describe in detail the advantages of the GUI functionality and/or layout over existing methods and designs.

[...]

But the Board concluded that the Examiner’s characterization was proper because “different levels of abstraction” can be applied in an Alice step-one analysis. Unfortunately, the Appellants’ arguments with regard to step two were relatively lacking, and the Board concluded that the Appellants did not identify or provide supporting explanation for additional elements that amount to significantly more than an abstract idea. Instead, the Appellants restated the above-noted improvements to the field of documenting and billing medical procedures, and then proceeded to unsuccessfully argue that the claimed features are not well understood, routine, and conventional because there was no prior art rejection of claim 1. The Board very quickly dismissed these arguments. Had the Appellants cited to the specification in step two and tied described advantages to particular claim limitations, they might have set themselves off on a better foot with the Board (and possibly with the Examiner), though it is difficult to say whether this would have been persuasive.

[...]

In rejecting this claim, the Examiner argued that the claims were directed to an abstract idea of “determining the acceptability of a determined sample score that is based on determined document scores of audited medical documents.” In response, the Appellants contended that the claims recite specific UI elements (e.g., a GUI wizard and an X-bar chart analysis) that define a specific user experience. Analogizing to the claims in Core Wireless, the Board sided with the Appellants, finding the claim to be directed to an improved GUI wizard and specifically identifying steps [2], [5], [6], and [11] of the claim as sufficiently inventive features. Notably, the Board emphasized how these and other claimed steps are described in detail in the specification along with details as to how the steps, as well as the GUI layout, help a user audit coded medical documents. The Board stopped its analysis after step one, concluded that the claims are patent eligible, and reversed the Examiner’s rejection.

The anti-PTAB lobby is quite well funded and it will do whatever it can to work around PTAB, knowing that the SCOTUS supports PTAB and the Federal Circuit almost always agrees with PTAB.

Attributing Negligible Differences to Whatever Suits the Loudest Opponents of the Patent Trial and Appeal Board (PTAB)

Posted in America, Deception, Patents at 12:23 am by Dr. Roy Schestowitz

Meter time expired

Summary: The U.S. Patent and Trademark Office (USPTO) has limited/restricted patent grants based on 35 U.S.C. § 101, adding to a number of factors which contribute to statistics in litigation and appeals; but the anti-PTAB lobby wants us to believe that there’s a resurgence for patent maximalism (the very opposite of what’s really happening)

THE ANTI-PTAB lobby we've just mentioned is hoping that the USPTO rather than patent courts will somehow end PTAB. They think that the USPTO should just castrate itself. As if patent quality should not matter anymore…

But that’s not going to work. They rely on Iancu becoming so obviously a ‘mole’ of the patent microcosm — a move that would likely be career suicide for him. Signed by Joff Wild, Richard Lloyd, Jacob Schindler, Bing Zhao and Adam Houldsworth (i.e. almost everyone at IAM) was this article which speaks of “electrifying opening keynote address by USPTO Director Andrei Iancu,” whom it lobbies to help IAM's clients, the patent trolls and thugs. It’s too revealing. Here is Watchtroll with the headline “Iancu: More 101 Guidance and PTAB Reforms Coming Soon”, preceding or coinciding with Dennis Crouch’s post that said: “Under Dir. Iancu, the USPTO appears to be moving away from eligibility rejections. The chart below shows that the past year about 8% of all examiner rejections were eligibility rejections. Over the past three months, that statistic has dropped to about 6.6%. During that time, the PTO has officially changed its approach via the Berkheimer memo, and Dir. Iancu’s leadership lends authority to the Office’s approach to broader eligibility.”

“Half a year after Berkheimer we have still not seen any profound impact.”Like we said some days ago, that’s a very minor difference that can be attributed to all sorts of things. Charles Bieneman, on the face of it, is still 'pulling a Berkheimer' (also coined “Berkheimer Effect” by his site). There has been so solid evidence of it. Here is what he wrote: “Turning first to the first prong of the Alice patent-eligibility test, the court considered the defendant’s argument that the claim “boils down to . . . functional results” of receiving and testing a packet, that was forwarded for further tests if it passed, and dropped if it failed. According to the defendant, the claim was analogous “to a human resources manager receiving a job application, checking if there are open positions, and dropping the application if not, but checking further for requisite training or experience if so.” The court agreed with the defendant that the claim was directed to an abstract idea, noting that the plaintiff’s own description of the claim described an abstract concept, “organizing security tests into an information sharing hierarchy.””

Half a year after Berkheimer we have still not seen any profound impact. The law firms made false predictions, hoping to (mis)use such predictions to attract business. Here’s the other post he made last month (he slowed down considerably by the way). Bieneman should not promote the idea that granted US patents deserve the “Presumption of Patent Validity”, especially those granted before Alice and Mayo, but here is what he wrote:

A plaintiff seeking to enforce patents claiming automated methods for uploading multimedia content was ordered to pay defendants’ attorney fees based on a finding of an “exceptional case” under U.S.C. § 285. Cellspin Soft, Inc. v. Fitbit, Inc., No. 4:17-CV-5928-YGR (N.D. Cal. July 6, 2018). The court had previously granted motions to dismiss because claims of U.S. Patent Nos. 8,738,794; 8,892,752; 9,749,847; and 9,258,698 were not patent eligible under 35 U.S.C. § 101 and the Alice/Mayo test. Relying on Inventor Holdings, LLC v. Bed Bath & Beyond Inc. (Fed. Cir. 2017), the court found the case exceptional because the claims were not only “manifestly directed to an abstract idea,” but, unlike the Inventors Holdings litigation, were sought to be enforced after a lot of post-Alice precedent should have made clear that the claims were patent-ineligible.

PTAB has served to demonstrate that many US patents now deserve the presumption of invalidity. Patent quality seems to be improving, but a lot of patents which haven’t yet expired are still around and only few of these (a tiny proportion of the whole) were tested in court.

“Patent quality seems to be improving, but a lot of patents which haven’t yet expired are still around and only few of these (a tiny proportion of the whole) were tested in court.”Now watch the spin about PTAB, citing a very minor difference, albeit in a direction that suits Michael Loney’s agenda (so he won’t treat is as an anomaly or something almost negligible). To quote:

The Patent Trial and Appeal Board’s institution rate was 58.4% in the first two calendar months after the Supreme Court ended the practice of partial institution – down from the 2018 fiscal year rate of 62% up to the end of April

The initial effect of the Supreme Court’s SAS Institute v Iancu decision has been to push down the institution rate of petitions at the Patent Trial and Appeal Board (PTAB).

But Iancu has only been there for a few months. He has barely even changed any rules (proposals at best). All the above seems like leap of faith from Dennis Crouch et al. The difference is also minor and overlooks the fact many no longer bother applying for patents with abstract stuff in them. The same goes for litigation. Only the ‘stronger’ cases end up before a court. That’s just expected. It’s their risk analysis.

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