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02.07.19

Donald Trump’s ‘Swamp’ Inside the U.S. Patent and Trademark Office is Not Obeying Courts, It’s Even Disregarding the Law

Posted in America, EFF, Law, Patents at 7:09 am by Dr. Roy Schestowitz

‘Swamp’ of vast proportions and Trump’s own making

Vikingland

Summary: In spite of the fact that US courts continue to reject software patents (even more so this year, at least so far) people like Iancu and fellow appointees (with connections to patent trolls and Trump) pretend that 35 U.S.C. § 101 is a problem which needs to be overcome

THE EPO scandals should have become familiar to longtime readers. The Office basically operates outside the rule of law, it attacks judges, and it routinely violates the rights of its own staff. It’s run by autocrats and dictators who are well connected (the current President, for instance, is an old friend of his predecessor).

“Having reviewed this week’s tweets and articles, it seems clear that patent maximalists lack any “good” news from CAFC, PTAB and district courts, so they obsess over rare and exceptional patent application anomalies (situations where PTAB and examiners do not agree).”We have been seeing similar patterns in the Office across the Atlantic lately. Many top-level appointments are patent maximalists with history working for patent trolls. The Director's firm had worked for Donald Trump before Trump gave him the job. The main person of the Patent Trial and Appeal Board (PTAB) has since then been removed (or compelled to leave), the Federal Circuit‘s (CAFC) judgments are being ignored (or cherry-picked at best), and 35 U.S.C. § 101 (Section 101) is being worked around in spite of Alice (SCOTUS). This means that examiners end up granting many patents in error.

Having reviewed this week’s tweets and articles, it seems clear that patent maximalists lack any “good” news from CAFC, PTAB and district courts, so they obsess over rare and exceptional patent application anomalies (situations where PTAB and examiners do not agree). Watchtroll (the patent trolls’ and software patents advocacy site) has just published “Bioinformatics Innovations Thrive Despite 101 Chaos”; but Section 101 is order, not chaos. Unless you’re a parasitic lawyer whose business is litigation and blackmail. Patently-O has just moaned about another Alice/Mayo case (Section 101). They just don’t get their way, do they?

EFF and other groups [1, 2] have been promoting this new post of Daniel Nazer from the EFF on why software patents are problematic, along with a call for action on Section 101 (at the Office):

The Supreme Court took a major step in cutting back on abstract software patents when it issued its landmark ruling in Alice Corp. v. CLS Bank. Since then, courts have thrown out hundreds of patents that never should have issued. Unfortunately, the Supreme Court’s ruling is under threat. The Patent Office has proposed new guidance that, in our view, is inconsistent with Alice and would lead to a renewed flood of bogus patents. Please join us in submitting comments asking the Patent Office to abandon this plan.

EFF critics like to frame it in the context of Google (not entirely wrong any longer), but the issue is very much real and the concern is very broad. Using a dozen of so software patents in Eastern Texas, for instance, one parasite targets Google right about now and Patently-O reports that Google is hoping to shift venue (anything but Texas). Patently-O has also just amplified Trump SOTU lies on so-called ‘IP’ (as did IP Watch).

“…where were groups like the EFF back then? Nowhere. They obstructed legitimate opposition to this whole “swamp” situation.”The bottom line is, the Office and Trump are the main issue, not the courts. At the moment it’s only the Director of the U.S. Patent and Trademark Office (USPTO) who gleefully defies caselaw [1, 2]. It’s a shame that groups like EFF or CCIA are too polite to call for his resignation; before he got the job we had repeatedly opposed his appointment (the nomination came from Trump and his notorious, corrupt cabinet); where were groups like the EFF back then? Nowhere. They obstructed legitimate opposition to this whole “swamp” situation.

02.01.19

Stupid Acquisition of the Month (or Year): Red Hat Selling Itself to the World’s Biggest Lobbying Power for Software Patents

Posted in EFF, GNU/Linux, IBM, Patents, Red Hat, Servers at 3:36 am by Dr. Roy Schestowitz

Recent: Latest Talk From IBM’s Manny Schecter Shows That IBM Hasn’t Changed and After the Red Hat Takeover It’ll Continue to Promote Software Patents

Manny Schecter
Photo credit: Esteban Minero

Summary: “Stupid Patent of the Month” is an abstract patent of IBM, a company that is about to take all of Red Hat’s patents while it’s actively bullying lots of companies using software patents and also selling software patents to notorious patent trolls

WHEN the announcement/proclamation of the prospective acquisition of Red Hat was first announced we were cautiously optimistic (it soon turned out that Red Hat had considered selling itself to Microsoft). We were hopeful that IBM would change course, but seeing the latest Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and patent lawsuits in district courts and the Federal Circuit it seems clear that IBM continues gaming the U.S. Patent and Trademark Office (USPTO), lobbying politicians for software patents and so on. They even recruited the former Director of the Office as a lobbyist (David Kappos). We’re going to have to become more vocal given IBM’s continued lobbying for software patents and ongoing bullying with patents on algorithms, even against small entities like online shops/retailers (as the latest IPRs reveal). They’re extorting legitimate businesses using likely illegitmate patents, knowing the cost of invalidating these patents may be too great for these businesses (they might choose to settle, instead). What is going on at the top (management) of IBM? It’s like they don’t give a damn whether Red Hat is becoming a part of them. What is Red Hat’s reaction? So far silence. I asked a few prominent employees, who prefer not to comment (maybe fear of losing their job). I know some people from Red Hat who follow me online; not even one tried to comment/explain/excuse IBM’s behaviour when it comes to this. It’s all silence.

“IBM’s patent policy is extremely incompatible with Red Hat’s.”IBM has been lobbying for abstract patents even in Europe, where software patents aren’t generally allowed (European Patent Office (EPO) President António Campinos does not care what the law says, however, as he’s just another Battistelli with extra secrecy).

At the turn of the new year, seeing that the founder of Watchtroll (Gene Quinn) stepped down as chief editor after 2 decades, we said we would not link to Watchtroll anymore (sending it traffic), not even to rebut its torrent of nonsense. Looking at the latest articles, however, we continue to see more nonsense. “Winning Strategies for Getting Past the Five Types of Patent Examiner” is the title of a new post from Watchtroll. They view examiners as enemies who need to be undermined or fooled/manipulated. How revealing. How anti-scientific of them. Another new post from Watchtroll says “Canada Patent Law Changes Are Bad News for Patent Owners”; by that it means Canada does the right thing and more parasitic lawyers would be out of a job and would likely need a career change.

“Unless the Board of IBM flushed them and replaces them with more Red Hat-like mentality, Red Hat will generally be part of the problem, part of the threat to software development and perhaps to GNU/Linux at large.”Gene Quinn of Watchtroll has just made it abundantly clear, once again, that IBM has not changed because in “IBM Calls for an End to the ‘Legal Fiction’ of Current 101 Law” we’re seeing not even a mild difference/deviation from the old agenda. The outline says: “This marks the final installment in my four-part interview with IBM’s Vice President and Assistant General Counsel Mark Ringes and Chief Patent Counsel Manny Schecter. I found our conversation fascinating and want to thank them both again for their time and insight. Below, we conclude with an in-depth discussion on how the U.S. patent system is affecting startups and the state of enforceability following Director Iancu’s Section 101 Guidance.”

So these are the people at the top of IBM. Unless the Board of IBM flushes them down and replaces them with more Red Hat-like mentality, Red Hat will generally be part of the problem, part of the threat to software development and perhaps to GNU/Linux at large.

“Stupid Patent of the Month” has just been published by Joe Mullin, who joined the EFF about a year ago after he had covered patent trolls a great deal in the media (and he did a good job, unlike the loads of stenography from law firms that dominate patent coverage). Some hours ago he published this post:

In the smartphone era, “distracted driving” is a serious, and well-known, problem. Official warnings about poor driving habits are as old as the automobile itself. The New York Times published a Pulitzer-winning series on distracted driving back in 2009.

Increasingly, technological assists are available for those seeking to manage their smartphone’s distractions while in the car. Apple integrated a “do not disturb while driving” mode into iOS 11, and Google has long had similar functionality in its Android Auto app. Multitudes of third-party smartphone apps exists to address the issue. Finally, more than 50 companies are working on what may be the ultimate solution to distracted driving: autonomous vehicles.

Unfortunately, the U.S. patent system creates warped incentives for emerging software fields like road-safety features. Rather than competing in a challenging space, some players are seeking broadly-worded patents, then hope to sit back and extract profits later.

That may be the strategy of the International Business Machine Corp., which has acquired more U.S. patents than any other company for decades now. This week, IBM was awarded U.S. Patent No. 10,191,462, describing a “Vehicle electronic receptionist.”

This is far from the first time IBM is shown to have pursued (and received) bogus patents on software. None of this seems to be changing following the takeover of Red Hat. This, in turn, makes us rather concerned about Red Hat’s future direction. IBM’s patent policy is extremely incompatible with Red Hat’s.

01.20.19

The EFF Must Return That ‘Internship’ Money to Google or It Would Disgrace the Patent Reform Movement (by Association)

Posted in America, EFF, Google, Patents at 1:42 am by Dr. Roy Schestowitz

Poisoning and harming the perception of impartiality

Wallet with money

Summary: Whether real or perceived, the EFF’s alleged bias is at stake now that Google money — not just money from a billionaire (Cuban) — lands on its lap; it can, by extension or association, serve to discredit patent reformers

PATENT maximalists like to pretend that Google is being everything and that everyone who challenges the status quo at the U.S. Patent and Trademark Office (USPTO) is a Google ‘shill’. This is totally untrue, however, but late on Friday I pointed out that EFF had taken money from Google, whereupon somewhat of a Web storm erupted (here’s one example among many). This has started a long discussion and some discord (even some members of the EFF’s Board are now dissenting) and there’s risk that Federal Circuit and Patent Trial and Appeal Board (PTAB) bashers will exploit it. Rather than dwell/focus on the details of what the EFF did (that would be rather counterproductive), let’s just say that the EFF now needs to do the right thing and revoke/return that money of Google. It not only undermines the perception that the EFF fights for privacy; it also emboldens those who accuse EFF — and by extension patent reform — of working for Google.

That’s not to say that the EFF is rogue; but there’s room for corruption and even the perception of corruption needs to be avoided. Here’s what the EFF posted just before the weekend on the issue of patents; key EFF staff, as we’ve noted before in the latest on Uniloc, challenged this patent troll and reported on the latest outcome:

A federal judge has ordered that prolific patent troll Uniloc cannot hide its shell games from the public. After EFF filed a motion to intervene seeking access to sealed court records, Judge William H. Alsup of the Northern District of California has ordered [PDF] that the relevant documents should be made public. Judge Alsup stayed his order for two weeks, however, to give Uniloc an opportunity to appeal to the Federal Circuit. We are pleased by the court’s ruling and will defend it if appealed.

The sealed documents have an importance far beyond this case. As Judge Alsup suggested in court, Uniloc appeared to be using complex machinations to hide its patents or its assets, possibly to avoid being hit with sanctions. The public has a right to know who owns patents, especially patents like the ones Uniloc claims to own, since the company has claimed its patents entitle it to payments from a vast array of technology companies.

In the underlying cases, Uniloc has sued Apple alleging that its iPhones and iPads infringe a number of its patents. For example, Uniloc claims that Apple infringes U.S. Patent No. 7,092,671, because “iPads incorporate software that causes an iPad, in response to a user’s selection, to transfer a telephone number wirelessly to a nearby iPhone which dials the selected number.”

In a heavily redacted motion to dismiss, Apple appears to argue that Uniloc entities and Fortress Investment Group LLC divided rights in the asserted patents in a way that means the Uniloc entities no longer had a legal right to sue for infringement. We say “appears” because the public cannot see most of the briefing and evidence. Because the redactions (requested by Uniloc) make it impossible to understand the dispute, we moved to intervene to seek public access.

A colleague, Alex Moss, wrote about PTAB as follows:

The exclusive rights granted by a U.S. patent create monopolies that can threaten innovation. We all benefit from the pro-innovation effects that come from cancelling monopolies that should not exist. That’s why the 2012 America Invents Act broadly allows “[a]ny person other than the patent owner” to challenge a patent at the U.S. Patent and Trademark Office.

But what if the government itself was banned from asking for this type of patent challenge? That would mean patent holders can demand big payments from government agencies, with access to taxpayer funds—yet those same agencies wouldn’t be able to efficiently test whether the patents are valid.

Now, the Supreme Court is poised to consider the question. EFF has filed an amicus brief, explaining that the government should be able to bring challenges in the Patent Office, based on century-old legal principles, as well as public policy concerns today. Limiting the government’s ability to challenge invalid patents efficiently deprives the public of these benefits for no good reason.

Many inter partes reviews (IPRs) leverage 35 U.S.C. § 101 to eliminate software patents; having said that, if courts get the feeling that the above amicus brief is indirectly funded by large firms rather than a public interest/s group, matters can backfire. I’ve already strongly urged the EFF, on numerous occasions so far this weekend, to walk away from Google. It’s pretty obvious that when it comes to the privacy stance of the EFF (maybe not copyrights) Google is completely and utterly incompatible with the EFF’s values. The EFF’s founder died not so long ago; what would he say if he saw this?

10.20.18

Unified Patents Demolishes Some More Notorious Patent Trolls and Offers Bounties to Take Down More of Them

Posted in EFF, Patents at 4:08 pm by Dr. Roy Schestowitz

Older: Unified Patents Puts $2,000 Bounties on Prior Art, Seeking to Defang Texan Patent Trolls That Are Active In Spite of TC Heartland

Bounty

Summary: Even though the new management of the US patent office treats patent trolls as a non-issue, groups that represent technology firms work hard to improve things (except for the litigation zealots)

THE epidemic of patent trolls in the US has slowed down and suffered some blows in recent years (TC Heartland being more recent and pretty major because it’s a SCOTUS ruling). But the epidemic or this plague isn’t a done deal. It’s not over yet.

“This is Iancu speaking about patents amassed not only by the millions (in the US alone) but as much as 10 million, with the majority of these granted in recent decades when the system lost sight of its original goal/s.”Trump-appointed (likely due to nepotism) USPTO “Director Andrei Iancu lauds risk takers, calls patent troll narrative ‘Orwellian doublespeak’,” Watchtoll wrote in yesterday’s headline, which sort of quote-mines a speech to the patent microcosm in which he also said: “This is 10 million patents in just over 200 years. And this is not just a number. Though sure enough, 10 million is a nice, round number. But more importantly, 10 million is the accumulation of creativity of such magnitude and concentration the likes of which humanity has never seen.”

This is Iancu speaking about patents amassed not only by the millions (in the US alone) but as much as 10 million, with the majority of these granted in recent decades when the system lost sight of its original goal/s. “10 million is the accumulation of creativity of such magnitude and concentration the likes of which humanity has never seen,” says a lawyer. Actually, a patent represents monopoly, not necessarily innovation and creativity (which as a lawyer he cannot recognise).

Either way, the above statement demonstrates that the current Director — unlike his predecessor — has no problem with trolls. Like Watchtroll, he refuses to recognise that they exist or that they’re a problem.

Let’s remember that Iancu is not a judge, however, so the more he deviates from what courts are saying (or keep saying), the steeper the decline in US patent certainty and therefore the value of pertinent US patents.

The EFF meanwhile presses on with its fight against patent trolls, having just mentioned AlphaCap again.

Daniel Nazer calls them “Patent troll AlphaCap Ventures” (mentioned here before several times last year) in yesterday’s post of his at the EFF’s Web site. To quote:

Patent trolls know that it costs a lot of money to defend a patent case. The high cost of defensive litigation means that defendants are pressured to settle even if the patent is invalid. Fee awards can change this calculus and give defendants a chance to fight back against weak claims. A recent decision [PDF] from the Federal Circuit has overturned a fee award in a case involving an abstract software patent on crowdsourcing. This disappointing ruling may encourage other patent trolls to file meritless cases.

Patent troll AlphaCap Ventures claimed that its patent covered various forms of online equity financing. It filed suit against ten different crowdfunding platforms. Most of the defendants settled quickly. But one defendant, Gust, fought back. After nearly two years of litigation in both the Eastern District of Texas and the Southern District of New York, AlphaCap Ventures dismissed its claim against Gust. The judge in the Southern District of New York ruled that AlphaCap Ventures’ attorneys had litigated unreasonably and ordered them to pay Gust’s attorneys’ fees. Those lawyers then appealed.

A disgusting thug and patent troll known as Global Equity Management (SA) Pty Ltd (GEMSA) also surrenders at last, having already trolled a lot of companies and SLAPPed the EFF. The patent was later thrown out and the EFF sued it back/reciprocally after SLAPP. Watch what Unified Patents has just accomplished:

On October 17, 2018, the Board issued an order terminating IPR2017-01467 pursuant to a joint settlement request filed by Unified Patents and Global Equity Management (SA) Pty. Ltd. (“GEMSA”) (an NPE). U.S. Patent 6,690,400, directed to a graphical user interface (GUI) displaying graphics representing various partitioned storage devices in a computer, has been asserted in multiple district court cases, 35 of which were pending at the time of settlement.

Unified Patents is looking for information, notably prior art, which can help thwart some more patent trolls. This time there’s a $1000 award to those who can show basis for demolishing the patent troll Express Mobile:

On October 18, 2018, Unified added a $1,000 contest to PATROLL seeking prior art for US Patent No. 9928044, the latest patent asserted in a wave of litigation filed by Express Mobile Inc. (an NPE). The ’044 patent generally relates to a method and system for displaying a website on a mobile device. The contest will expire on January 18, 2019.

Another new bounty stands at $2000 (yes, two thousand bucks) for anyone who can help demolish a patent troll that was paid a lot by Microsoft (Uniloc). To quote:

On October 15, 2018, Unified added a $2,000 contest to PATROLL seeking prior art for US Patent No. 6470345, owned and asserted by Uniloc USA, a well-known NPE. The ’345 patent, titled “Replacement of substrings in file/directory pathnames with numeric tokens,” generally relates to a system and method for a file directory system. The contest will expire on January 14, 2019.

Uniloc has been suing Apple quite a lot lately. We wrote about it quite a few times. This troll, Uniloc, keeps flinging more lawsuits and patents at Apple and based on some new reports HP patents have just landed on some troll’s lap, which is suing:

  • Apple sued over FaceTime technology

    Granted to Hewlett-Packard Development Company in 2013, U.S. Patent No. 8,539,552 for a “System and method for network based policy enforcement of intelligent-client features” details techniques for controlling services in packet-based networks. Described in the IP’s main claims are methods for messaging policy enforcement including signaling, authentication and routing to correct services based on stored information.

  • Patent trolls sets sights on Apple with FaceTime lawsuit

    The patent in question, AppleInsider reports, covers intelligent-client features in IP telephony networks and more specifically relates to how a pair of devices can communicate with one another on a packet-based network.

These are patents based on old work of HP, but they’re being used/leveraged by trolls. It’s not possible for Apple to sue HP to deter/discourage such action. Therein lies the nasty nature of trolls and they need to be stopped, no matter what Iancu thinks. Unified Patents works for the interests of the Unified States, whereas Iancu (born in Hungary) works for the interests of patent lawyers’ unions.

09.05.18

CCIA Speaks Out and EFF Lashes Out at Andrei Iancu’s USPTO for Trying to Work Around the Law and Ignore Courts Because of Patent Maximalists’ Agenda

Posted in America, EFF, Law, Patents at 4:38 am by Dr. Roy Schestowitz

Make Patents Great Again

Summary: A sort of regulatory capture at the USPTO worries front groups of technology companies, seeing that the USPTO simply cherry-picks court rulings in an effort to shape patent law (or at least examination guidelines) in favour of the litigation ‘industry’

THE USPTO had improved for a number of years, but then came Iancu, whose firm had worked for Donald Trump. Trump put him in charge of the USPTO, perpetuating the very Trump-like culture/pattern/hallmark of “vendor capture” (more commonly known as “regulatory capture”). The “vendor” in this context is the patent microcosm.

“Trump put him in charge of the USPTO, perpetuating the very Trump-like culture/pattern/hallmark of “vendor capture”.”Yesterday the CCIA‘s Patent Progress wrote something which echoes what we’ve been saying for a long time: “Further Evidence That Examiners Can Be Incentivized To Improve Patent Quality” (as they should).

Patent Progress under Mr. Landau really gets it (unlike Matt Levy, whose wife worked for the USPTO at the time). To quote Landau’s opening paragraph:

Patent Progress has previously covered the research of Profs. Wasserman and Frakes regarding structural incentives at the USPTO that affect examiner behavior. A new paper in the AIPLA Quarterly Journal, written by Eric Blatt and Lian Huang (both former examiners), examines another area in which examiner incentives affect behavior—the Signatory Authority Review Program.

Levy’s all-time low was probably the time he wrote for Watchtroll, a site of patent extremists. Here’s an example from yesterday, “The Death of Invention” (patents and invention are not the same thing and patents are not dying, they’re merely improving).

“Levy’s all-time low was probably the time he wrote for Watchtroll, a site of patent extremists.”“This is modern § 101 in a nutshell,” Burman York (Bud) Mathis III writes this week, comparing abstract patents being voided to a “death” and adding a ridiculous image (“painting” or computer rendering) of a graveyard. Quinn and his drama queens. Quinn, the site’s founder, has meanwhile traveled to see Iancu and he wrote about it yesterday. Iancu buddying up with Watchtroll (once again) says a lot about today’s USPTO leadership. Iancu is quoted as saying: “The proposal is that once we go through the various steps and we make all the modifications that are necessary, new fees would be implemented in early 2021. We’re a ways away from all that.”

Will he even last that long? It certainly does not look like technology companies (prolific applicants) like him, but based on this new tweet, the patent trolls’ lobby is happy to see such a patent ‘industry’ actor in charge of the Office. “Iancu has made a very encouraging start at the USPTO, says 3M’s IP chief,” IAM wrote. He's a patent maximalist, just like IAM which routinely gives him a platform.

“Perhaps Mr. Iancu, appointed by Trump, decided that he like his boss can just ignore laws and court rulings when that suits him and his financial agenda (he’s still connected to the company he came from).”By contrast, the EFF’s Alex Moss wrote (yesterday evening or last night) about a problem we had been mentioning for several months. He warns that the Office should not be allowed to make mockery of justice, or Iancu ignoring the law and becoming like Battistelli (what did at the EPO). SCOTUS decisions need to be respected, the ITC needs to respect Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) rather than ignore them, and the Federal Circuit‘s decisions oughtn’t be cherry-picked. “The Berkheimer case is a mistake that needs correcting,” Moss correctly wrote. Here’s more:

Since the Supreme Court’s 2014 Alice v. CLS Bank decision, courts have invalidated hundreds of patents that should never have been issued. Unfortunately, the Patent Office may restrict the impact of that ruling on patent applications under examination.

The Patent Office has issued a request for comment on a proposal to give guidance to examiners that would put a thumb on the scale in favor of patent applicants. If adopted, the guidance would make it too hard for examiners to reject applications on abstract ideas. We’ve argued before against Patent Office proposals that water down the Supreme Court’s Alice decision. We have submitted new comments urging the office to apply Alice comprehensively and correctly, rather than biasing the process in favor of applicants hoping to patent generic computer functions.

The Alice ruling was a big win for software developers and users. The decision empowered district courts across the country to invalidate hundreds patents that should not have issued, and to do so at the earliest stages of a lawsuit, before litigation costs become prohibitive. But lawsuits over patents on basic ideas, like the idea of using categories to store and retrieve information, keep coming. These patents may use technical jargon, but actually require no technology beyond an off-the-shelf general-purpose computer.

Examiners need to understand the change in the law that Alice made. Our comments emphasize the key part of Alice’s landmark holding—describing generic computers performing generic computer functions can’t save a patent.

So why is this guidance coming now? The Patent Office’s new request comes on the heels of the Federal Circuit’s decision in Berkheimer v. HP, Inc., the first case to find evidence outside a patent necessary to decide whether the patent is abstract under Alice. If courts take the direction of Berkheimer, it could mean that those accused of infringement will have to present evidence to a jury at trial before they get a decision on eligibility under Alice.

[...]

Until then, EFF hopes the Patent Office takes our comments into account. The Berkheimer case is a mistake that needs correcting. The Patent Office should not view it as an opportunity to skew the outcome of decisions on pending patent applications in ways that undermine the rules so recently set forth in Alice.

Perhaps Mr. Iancu, appointed by Trump, decided that he like his boss can just ignore laws and court rulings when that suits him and his financial agenda (he’s still connected to the company he came from). If that’s the case, the reputation of the Office will suffer for a long time to come.

09.02.18

EFF and TechDirt Continue to Challenge the USPTO (and the Courts) to Improve Patent Quality

Posted in America, EFF, Law, Patents at 10:08 am by Dr. Roy Schestowitz

Recent: Google Gets Told Off — Even by the Typically Supportive EFF and TechDirt — Over Patenting of Software

Indian eagle
Hitting back against patent hawks and eagles/vultures (those looking to prey on someone)

Summary: US-based sites/groups which are technology-leaning rather than lawyers- or litigation-leaning advise the world’s most powerful patent office and the corresponding courts to consider what’s truly unpatentable and decide accordingly

THE USPTO has been pressured to improve patent quality; one way to achieve this is to highlight obviously bad (and embarrassing) patent grants/awards. How about European Patents on literally fraudulent things (part of elaborate scams) and special awards for such people?

We recently wrote about a "Stupid European Patent" (EP) and we welcome pointers from readers (pointers to other ridiculous European Patents). In the meantime see “Stupid Patent Of The Month: A Newspaper On A Screen” by Alex Moss (EFF). This was published by TechDirt days after the original had been published in the EFF’s site to say:

One of the oldest challenges in journalism is deciding what goes on the front page. How big should the headline be? What articles merit front-page placement? When addressing these questions, publishers deal with a physical limit in the size of the page. Digital publishing faces a similar constraint: the storage capacity of the user’s device. You can only put as much content on the device as will fit. If that sounds like a fundamental to you, and unpatentable, idea, we agree. Unfortunately, the Patent Office does not. They recently decided to issue our latest Stupid Patent of the Month: U.S. No. 10,042,822, titled “Device, Method, and System for Displaying Pages of a Digital Edition by Efficient Download of Assets.”

The ’822 patent adds nothing remotely inventive or technological to the basic idea of providing a portion of a periodical—i.e., a newspaper—based on the amount of space available. The patent owner, Nuglif, makes an application for distributing news and media content.

Even a cursory glance at the patent reveals the limits of its technological reach. It explains: “The present invention is concerned with a processor-implemented method for displaying a digital edition readable by a dedicated software application running on a data processing device having a display screen, even though the digital edition is not completely downloaded on the data processing device.” The specification is typically elusive as to what that invention actually is, instead repeating the boilerplate phrase beloved by patent applicants, that “the description set forth herein is merely exemplary to the present invention and is not intended to limit the scope of protection.”

For the limits of the patent, we look to its claims, which define the applicant’s legal rights instead of describing the operation of the “invention” to which the claims supposedly correspond. The patent has only one independent claim, which includes steps of (a) receiving a pre-generated file linking to at least some content from current and upcoming digital editions, (b) requesting the linked-content for display, and (c) determining how much content from the upcoming edition to download based on publication date and device capacity.

Here is Mike Masnick’s take on the recently-mentioned EFF and R Street amicus brief (about SCOTUS and the Federal Circuit‘s decision). From TechDirt:

In order for something to be patentable subject matter, it has to meet a few criteria, listed out in the Patent Act. It needs to be a “useful process, machine, manufacture, or composition of matter” and it needs to be “non-obvious” to someone “having ordinary skill in the art.” But, perhaps most importantly it needs to be a new invention. You can’t patent something someone else already invented. That’s why prior art is so important.

Already, the US Patent Office is notoriously bad at finding prior art, which has been a big complaint here at Techdirt for over a decade. Part of this is that they limit what they’ll even look at as prior art, unless information is put directly in front of their faces by those trying to invalidate bad patents. Generally, most of the prior art that patent examiners look at consisted of… earlier patents and scientific journals. And that’s not nearly enough for a whole variety of reasons. But, now the Federal Circuit has suggested that even earlier patent applications may not really count as prior art.

EFF and R Street teamed up to file an amicus brief with the Supreme Court asking it to reverse the Federal Circuit (something the court has done over and over and over and over and over again in the last dozen or so years).

We’ve always appreciated the EFF’s campaigns regarding patents at the US Patent Office, sometimes more than on other occasions (there was a time when the EFF’s strategy was a lot poorer). Nowadays they openly speak about software patents; they speak out against these.

08.02.18

The Number of Granted US Patents is Declining and Transparency in Patent Courts is Improving

Posted in America, EFF, Patents at 6:10 am by Dr. Roy Schestowitz

Not good for patent law firms, but good for everyone else

Patent Lawyers' Tears

Summary: The EFF has managed to improve access to judgments (or briefs) and there are various indicators which suggest a generally positive trend in the United States, which had 50% more patent lawsuits just half a decade ago

THE QUALITY of patents granted by the EPO keeps sliding. Contrariwise, based on widely reported estimations, things go in the opposite direction in the United States.

“So this is indeed what we’ve heard — that patent grants will have declined this year.”Will the USPTO only chat about patent quality or actually do more to improve it? Iancu has thus far done nothing to tackle this issue, unlike his predecessor.

Dennis Crouch has just rendered this chart which serves to reaffirm rumours that patent numbers (or number of granted patents per annum in the US) is finally, belatedly, declining. He looked at a subset of these and said: “With two-months left in the fiscal year, the USPTO is on-track another 300,000+ patent year. The chart above shows the number of utility patents issued each fiscal year for the past two decades. The current forecast for FY2018 is a bit below FY2017 – but still the second highest number of patents issued in a single year. Examiners will push to make their quotas prior to the end of the year – however those will not be reflected in issued patents in FY18 because of the lag between allowance and issuance.”

So this is indeed what we’ve heard — that patent grants will have declined this year. Crouch went on to say that the PTO will discuss patent quality. Quoting Crouch, a patent maximalist: “USPTO is planning to exercise its fee setting authority to set or adjust patent fees. As part of the rulemaking proceeding for the issuance of regulations under Section 10, the USPTO will publish a proposed patent fee schedule and related supplementary information for public viewing no later than August 29, 2018.”

Things have changed a lot since Alice (SCOTUS), reducing the scope of patenting/eligibility. This is important because low-quality patent grants sometimes result in frivolous lawsuits, in turn resulting in banruptcies/embargoes, owing to a trigger-happy ITC, whose latest imposition of sanctions is being celebrated by Watchtroll. This is from yesterday:

PopSockets LLC is a Boulder, Colorado-based company that designs and manufactures mobile accessories. Its flagship product, the PopSockets Grip, is a phone grip and stand that is collapsible, customizable, and re-positionable.

PopSockets’ Grip is protected by PopSockets’ U.S. Patent No. 8,560,031, titled Extending Socket for Portable Media Player. On June 14th, the U.S. International Trade Commission (ITC) issued a general exclusion order which prohibits the importation of any collapsible sockets for mobile electronic devices that infringe upon PopSockets’ ’031 patent.

That’s an embargo. Were all legal avenues and appeals exhausted? Probably not, but the ITC doesn’t care about these. It just “shoots first and asks questions later,” as the famous saying goes. That’s a problem. It’s also a problem because embargoes never help the market; they just help a single corporation, typically a monopoliser.

Josh Landau (CCIA) has incidentally just responded to the likes of Watchtroll when he said (two days ago): “There’s been an increasing usage of the term “efficient infringement” in the debate over patent reform. The basic idea is that large companies make an active choice to ignore patents and just pay for them when they lose a lawsuit.”

We’ve seen this smear many times. It’s being popularised by Watchtroll. Landau then puts in perspective what it means to be accused of infringement:

Now you have to pay a patent lawyer to go through that list of 2,000. They have to look at all of the claims of each patent. Some can be dismissed quickly—maybe they require an infrared lamp and our device doesn’t have any infrared, or they require the device to attach to the skin with an elastic band and our device is glued on. Some will require more thought. When working as a patent attorney, I conducted this kind of analysis. I typically estimated an average of 5 minutes per patent to make this initial determination of “clearly not relevant” or “more time required.” That’s 165 hours of attorney time. We’ll assume an inexpensive attorney who charges $200/hour. That’s $33,000 to cull our list down. Of that 2,000, we might wind up with 50-100 patents that still require significant thought, and we’ve already spent nearly $60,000.

Now, for each one of those 50-100 patents, we’re going to go through the patent in detail, read the file history, think about how the claims might apply to the product. The goal is to either be able to tell the manufacturer “this patent is unlikely to be a problem” with a convincing argument inside of a single paragraph, or to say “this patent would benefit from an opinion of counsel.” That’s about an hour per patent, for another 50-100 hours, and another $10,000-$20,000 in attorney’s fees. We’re at $70,000-$90,000. We probably have a list of around 20 patents left at this point that require an opinion.

It’s pretty obvious who can and cannot afford these fees; this is why patent trolls typically target small companies. They don’t even need to go to court.

A couple of days ago Joe Mullin wrote about a patent troll that preys on small companies [1, 2]. His employer, the EFF, hired him for his decade-long experience writing about patent trolls and TechDirt published a copy that says:

When patent trolls threaten and sue small businesses, their actions draw the public’s attention to the worst abuses of the patent system. In 2013, a company called MPHJ Technology got called out in a U.S. Senate hearing as a “bottom feeder” engaged in “garden-variety extortion” after it sent out thousands of demand letters demanding payments from small businesses that dared to use printers with “scan-to-email” functions. Lawmakers, understandably, found it incomprehensible that broad, stupid patents were being used to sue burger stands and grocery stores.

It’s essentially a patent on having a prepaid account for—well, anything.

There’s a good reason for that concern. It’s hard to see how lawsuits against small businesses using basic technology do anything to “promote the progress of science and the useful arts.” By contrast, it is easy to see how these lawsuits harm companies and consumers by increasing the costs and risks of doing business.

But the intermittent public attention hasn’t stopped this most basic abuse of the patent system. Upaid Ltd., a shell company based in the British Virgin Islands, has been filing patent infringement lawsuits throughout 2018, including 14 against laundromats—yes, laundromats—from California to Massachusetts.

Upaid says that laundromats are infringing U.S. Patent No. 8,976,947. Claim 1 of the patent describes a computer system that performs “pre-authorized communication services and transactions,” after checking an account to see if a user “has a sufficient amount currently available for the … transaction.” It’s essentially a patent on having a prepaid account for—well, anything.

Right now, Upaid lawyers are focused on systems run by Card Concepts, Inc., a service provider that markets a system called Laundry Card to laundromats. Many of the Upaid’s complaints simply point to online photos of the laundromats and the relevant card dispensers as evidence of infringement.

Mullin’s colleague, Daniel Nazer, has meanwhile heralded/spread some good news about the Federal Circuit agreeing to become more transparent about these proceedings:

In a modest victory for public access, the Federal Circuit has changed its policies to allow the public to immediately access briefs. Previously, the court had marked briefs as “tendered” and withheld them from the public pending review by the Clerk’s Office. That process sometimes took a number of days. EFF wrote a letter [PDF] asking the court to make briefs available as soon as they are filed. The court has now changed its policies to allow immediate access.

Earlier this month, the Federal Circuit announced a new compliance review policy. While that new policy [PDF] doesn’t specifically mention the practice of withholding briefs as “tendered,” we have confirmed with the Clerk’s Office that briefs are now available on PACER as soon as they are filed. Our review of recent dockets also suggests that briefs are now available to the public right away.

The EFF has understandably come under attack from patent extremists. It means that it’s doing good work. The funny thing is, these extremists now call everyone they don’t agree with a “shill”; some try to argue that Google is behind everything.

07.15.18

PTAB Defended by the EFF, the R Street Institute and CCIA as the Number of Petitions (IPRs) Continues to Grow

Posted in America, EFF, Patents at 9:52 pm by Dr. Roy Schestowitz

Things one can accomplish with pen and paper just aren’t patent-eligible anymore

Just pen and paper

Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) come to the rescue when patently-bogus patents are used, covering totally abstract concepts (like software patents do); IPRs continue to increase in number and opponents of PTAB, who conveniently cherry-pick Supreme Court (SCOTUS) decisions, can’t quite stop that

THE encouraging developments at the USPTO mostly revolve around invalidations. And why? Because many patents had been granted in error over the decades, all this (or most of this) prior to AIA, whereupon many of these were taken away. It’s no secret that the EFF speaks out in support of PTAB, for instance, which is why the anti-PTAB lobby hates the EFF so viscerally. PTAB basically helps raise patent quality in the US. PTAB is being regularly defended by the EFF and also by the R Street Institute and CCIA, as the EFF noted a few days ago. To quote:

It’s already much too difficult to invalidate bad patents—the kind that never should have been issued in the first place. Now, unfortunately, the Patent Office has proposed regulation changes that will make it even harder. That’s the wrong path to take. This week, EFF submitted comments [PDF] opposing the Patent Office’s proposal.

Congress created some new kinds of Patent Office proceedings as part of the America Invents Act (AIA) of 2011. That was done with the goal of improving patent quality by giving third parties the opportunity to challenge patents at the Patent Trial and Appeal Board, or PTAB. EFF used one of these proceedings, known as inter partes review, to successfully challenge a patent that had been used to sue podcasters.

Congress didn’t explicitly say how these judges should interpret patent claims in AIA proceedings. But the Patent Office, until recently, read the statute as EFF still does: it requires the office to interpret patent claims in PTAB challenges the same way it does in all other proceedings. That approach requires giving the words of a patent claim their broadest reasonable interpretation (BRI). That’s different than the approach used in federal courts, which apply a standard that can produce a claim of narrower scope.

Using the BRI approach in AIA proceedings makes sense. Critically, it ensures the Patent Office reviews a wide pool of prior art (publications and products that pre-date the patent application). If the patent owner thinks this pool is too broad, it can amend claims to narrow their scope and avoid invalidating prior art. Requiring patent owners to amend their claims to avoid invalidating prior art encourages innovation and deters baseless litigation by giving the public clearer notice about what the patent does and does not claim.

[...]

We hope the Patent Office will reconsider its proposal, after considering our comments, as well as those submitted by the R Street Institute and CCIA, a technology trade group. Administrative judges must remain empowered to weed out those patents that should never have issued in the first place.

We regularly take note of the good work of the EFF (recent examples [1, 2]). It wasn’t always the case because the strategy/policy of the EFF used to be a tad different when it comes to software patents. One reader sent us the pointer to an article titled “No, you can’t patent the ability to pause a lesson recording, EFF says” (relating to the original from the EFF, which we mentioned before). Here’s their latest target:

The Electronic Frontier Foundation has stepped up to represent a small, independent online language teacher who has been threatened with a lawsuit by a British publisher that claims the teacher is infringing an American patent issued back in 2000 for a particular audio-based teaching technique.

What’s the secret sauce? Amazingly, the use of a pause button to temporarily stop the lesson.

Well, software patents are a stain on the patent system. The Office ought to stop granting these, as per Alice. But will it? At the moment many rely on courts (or PTAB) to do this. This is why courts have been coming under many attacks from patent maximalists. It’s pretty ugly to watch.

With borderline abuse, patent maximalists still try (almost every day) to discourage me from writing about patents. Little do they know that they only embolden me; if it upsets them, it means there’s impact. They just don’t like to see the “other side” expressing its views, hence the attacks on the EFF as well.

Dealing with two SCOTUS decisions regarding PTAB, this upcoming webinar has been titled “Protecting and Licensing University Patents in a Post-Oil States and SAS World” (they allude to immunity universities typically enjoy).

Michael Loney has meanwhile written about the latter decision, under a headline which later extended from “SAS appeal – how the Federal Circuit has interpreted PTAB cases” to “SAS appeal – how the Federal Circuit has interpreted PTAB cases since Supreme Court ruling” (why this revision? Clarity?).

We recently mentioned how they obsess over SAS rather than Oil States, the far more important decision.

All this cherry-picking of SCOTUS cases is quite revealing, as was yesterday’s promotion of a Practising Law Institute (PLI) webcast on WesternGeco. Loney’s colleague, Sanjana Kapila, is trying to figure out what Trump’s SCOTUS ‘coup’ means for patents, especially knowing what Gorsuch said about SAS and Oil States. Well, initially an "unknown" on the subject of patents, Gorsuch has thus far been a total disaster. As many feared, he now parrots talking points from think tanks funded by the Koch Brothers. To quote Kapila’s article:

The US Supreme Court ruled on three intellectual property cases this term, all concerning patents. This was far fewer than the eight IP cases in the previous term.

Loney is meanwhile taking note of key PTAB decisions, remarking that “PTAB designates five informative decisions” and to quote:

The Patent Trial and Appeal Board has designated five decisions as informative, two ex parte review and three inter partes review decisions

Dennis Crouch also listed these cases. He wrote: “The USPTO has recently designated five PTAB decisions as “informative.” (I have also included the recent Western Digital decision as well).”

On the 12th of July Loney revealed that filings/petitions (IPRs) were on the “up”, still. That means more patents being scrutinised. Here are the numbers:

June included an increase in Patent Trial and Appeal Board petition filing, two PTAB-related bills being introduced in Congress and the first reversal of a PGR final written decision

The first half of 2018 ended with 817 petitions filed at the Patent Trial and Appeal Board, up from 766 in the second half of 2017.

The Federal Circuit weighs in occasionally. Here’s a new example of “CBM Decision Vacated: the patent does not qualify as a covered business method.”

To quote Crouch:

Apple and Google both challenged ContentGuard’s U.S. Patent 7,774,280 under the Covered Business Method Post Grant Review proceedings. The challenges raised eligibility, novelty, and obviousness challenges to several of the claims, but the Director (acting via the PTAB) only partially instituted: instituting only on novelty and obviousness, and only to three of the claims. In the end, the PTAB found those claims obvious, but also allowed the patentee to add Claim 37 as a substitute for Claim 1 and found the new claim valid (not proven invalid).

On appeal, the Federal Circuit ruled the entire event a nullity — finding that the patent does not qualify as a covered business method. See Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1323 (Fed. Cir. 2015) and Unwired Planet, LLC v. Google Inc., 841 F.3d 1376, 1379 (Fed. Cir. 2016). A key case on point is also Secure Axcess, LLC v. PNC Bank National Ass’n, 848 F.3d 1370, 1381 (Fed. Cir. 2017). However, that case was vacated as moot by the Supreme Court in PNC Bank Nat. Ass’n v. Secure Axcess, LLC, 138 S. Ct. 1982 (2018).

The “Transitional Program for Covered Business Method Patents” is not codified within the United States Code (35 U.S.C. ___) because it is only a temporary program that sunsets in September 2020. Thus, the CBM program is generally cited as Section 18 of the Leahy-Smith America Invents Act.

Factual errors in Patently-O (not for the first time, either) were later noted by Patently-O itself. “On July 11,” Crouch said, “I wrote about the recent Federal Circuit decision in Apple v. ContentGuard. My post erroneously stated that the court found that the patent does not qualify as a “covered business method” patent. The court did not take that bold of a step of a reversal. Rather, the court vacated the PTAB’s finding that was based upon an improper legal standard and remanded for a reconsideration.”

This was mentioned some hours ago by Watchtroll.

Google too is involved in this fight because it is also affected. And after all, Google too has challenged ContentGuard’s patent number 7,774,280. Google is just harvesting patents nowadays (new example from the news); it is patenting software, relying on patents that restrict Public Domain material/knowledge and occasionally Google sues as well. One day PTAB will turn against Google itself, rendering its own patents invalid as well.

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