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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.

07.04.18

Microsoft’s Patent Troll Blackmails Yet Another Microsoft Rival and Continues to Engage in Shakedown Tactics

Posted in EFF, Microsoft, Patents at 11:36 pm by Dr. Roy Schestowitz

Extortion racket, funded by Microsoft

Microsoft and Finjan

Microsoft Finjan stake

Summary: After much bullying, which is always directed at Microsoft’s rivals, Trend Micro agrees to pay Microsoft’s Israeli patent troll, Finjan

RELYING on low-quality software patents, granted by the USPTO and sometimes purchased from IBM (because many of Finjan’s own patents get rejected/invalidated in courts), the Microsoft-backed patent troll Finjan Holdings blackmails yet another Microsoft rival, this time Trend Micro.

“Remember that Finjan does not do anything but litigation, hence it’s a patent troll.”As usual, this malicious troll issues a whitewashing statement about it (this is all they ever speak about to their so-called ‘shareholders’). We have found this press release in a lot of sites. The troll pays a lot of money to spread this message, which it believes can compel many companies to shell out ‘protection’ money rather than attempt to challenge its software patents.

Finjan Holdings, Inc. (NASDAQ:FNJN), and its subsidiaries, Finjan, Inc. (“Finjan”), Finjan Mobile, Inc. (“Finjan Mobile”), and Finjan Blue, Inc. (“Finjan Blue”), a pioneer in cybersecurity technologies, and Trend Micro Incorporated (TYO: 4704; TSE: 4704), a global leader in cybersecurity solutions, today announced that they had entered into an on-going license arrangement.

Under this arrangement, both companies will benefit in a number of ways. Trend Micro gains access to Finjan’s broad cybersecurity patent portfolio, and Finjan will strengthen its leadership in embedded cybersecurity technologies and intellectual property through the transfer of select security-related patent assets from Trend Micro. Each party also gains more limited access to the other’s patent portfolio for a certain number of years.

Remember that Finjan does not do anything but litigation, hence it’s a patent troll. How does Microsoft explain financially backing this troll?

Finjan isn’t the only patent troll out there; but this one is large and connected to Microsoft, just like many others.

The EFF has just covered another example. The outcome of bogus patents and patent trolls that prey on the weak (without legal advisors) was explained as follows:

Foreign languages have been taught, and studied, for thousands of years. People who teach languages are the last folks that should be dealing with patent threat letters—but incredibly, that’s exactly what has happened to Mihalis Eleftheriou. Hodder and Stoughton, a large British publisher, has sent a letter to Eleftheriou claiming that it has rights to a patent that covers recorded language lessons, and demanding that he stop providing online courses.

Eleftheriou teaches a variety of online classes through his Language Transfer project. The courses are simple audio files uploaded to platforms like Soundcloud and YouTube. So you can imagine his surprise when he received a letter [PDF] from Hodder and Stoughton, saying that his project infringes a U.S. patent.

Patent trolls need to go away; they contribute absolutely nothing. For Microsoft to actively support many of them, including the world’s biggest, says a lot about the ‘new’ Microsoft.

06.14.18

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

Posted in America, EFF, Europe, Google, Patents at 2:00 am by Dr. Roy Schestowitz

Jarek Duda
Source: Jarek Duda’s homepage

Summary: The EFF’s Daniel Nazer, as well as TechDirt’s founder Mike Masnick, won’t tolerate Google’s misuse of Jarek Duda’s work; the USPTO should generally reject all applications for software patents — something which a former Commissioner for Patents at the USPTO seems to be accepting now (that such patents have no potency after Alice)

THE EPO is not allowed to grant ‘pure’ software patents; the USPTO, if it was to fully embrace Alice, would not permit this either. In practice, however, they nowadays rely on buzzwords, as we shall explain in the next post. To bring up again an example that we mentioned the other day, Uber is trying to call software patents something “AI”, basically patenting bogus, abstract ideas (courts would definitely reject these).

“The Supreme Court no doubt ‘upsets’ the status quo and pisses off the patent maximalists, but that’s just the law.”The term “AI” comes from CNN, which has just published “Uber wants to patent a way to use AI to identify drunk passengers” (AOL went with another kind of headline). Still just a patent application, CNN says that “[t]he patent application describes a system that learns how you typically use the Uber app, so that it can identify unusual behavior. The system relies on an algorithm to weigh a variety of factors, including typos, how precisely a user clicks on links and buttons, walking speed, and how long it takes to request a ride. The time of day, and where a ride is requested may also be considered.”

Of course this should be rejected. The Supreme Court no doubt ‘upsets’ the status quo and pisses off the patent maximalists, but that’s just the law. Robert Stoll, a former Commissioner for Patents at the USPTO, now admits (implicitly) that software patents are pretty much ‘dead’ in the US and trade secrets should be pursued instead. Have such patents outlived their usefulness? His summary at Watchtroll says: “Innovative algorithms and even diagnostic methods may be easier and more effectively protected by trade secret. Trade secret protection avoids the uncertainty of compliance with the vague patentability standard set forth by the Supreme Court.”

Coming from a patent maximalist like Stoll, this is pretty significant. These people have seemingly given up. Almost.

It is good to see that EFF staff is nowadays speaking explicitly about “software patents” rather than just “bad patents” (or equally vague terms). Mr. Nazer has just noted: “In an important sense, this is the story of just about every software patent. Almost all of them take the form: Use [existing hardware] and [known software methods and techniques] to get a [fairly unexceptional result]. [] When IBM is getting 9,000 freaking patents every year, and Google and Microsoft are getting 2,500 each, they are filing applications for every trivial little thing they do.”

Well, IBM acts like a patent troll and Microsoft keeps feeding patent trolls whilst also using software patents to blackmail GNU/Linux companies (an extortion racket). Google being mentioned there is noteworthy and we’ll explain why in just a moment.

Historically we have been relatively sympathetic towards Linux-powered products such as Android. We openly supported these products knowing that these had been subjected to Microsoft’s blackmail. This had an impact on both GNU and Linux (and beyond).

Some hours ago, in writing about Space Data Corporation v Alphabet, Inc. and Google LLC, the Docket Navigator revealed that Google seemingly suspects that it is being sued by proxy (maybe by Microsoft). We say Microsoft because we already have extensive evidence that Microsoft does such things, e.g. the SCO lawsuit. Might a company like Microsoft be funding these lawsuits against Google and Android? We know for sure that Microsoft has been feeding patents into the mouths of patent trolls which go after Android OEMs. “The court denied defendants’ motion to compel additional discovery regarding plaintiff’s litigation funding because defendants failed to establish relevance or proportionality,” says the Docket Report. Who does Google suspect to be the financier of Space Data Corporation’s litigation campaign? We don’t know. But does Google deserve full sympathy? Well, not anymore.

The EFF’s Daniel Nazer mentioned the situation we covered earlier this week. He wrote that “Google’s ANS patent only stands out because the real inventor of ANS took every step he could to ensure that the new compression algorithm would truly belong to the public.”

“And he also approached the media,” I told Nazer, “myself included…”

Nazer highlighted “Google’s response: “but we are applying the technique to video” might not impress a talented computer scientist like Jarek Duda. But arguments like that prevail at the USPTO all the time.”

The USTPO profits from issuing lots of bogus patents that courts would invalidate later (if the defendant/IPR filer can afford it). This really ought to stop. Google itself ought to stop as well. TechDirt has just published a complaint about this as well, including this preceding background:

For the most part, Google has actually been one of the good guys on patent issues. Unlike some other Silicon Valley companies, Google has long resisted using its patents to go after others, instead only using the patents defensively. It has also fought for patent reform and experimented with new models to keep its own patents out of the hands of patent trolls. But it’s been involved in an ongoing fight to patent something that an earlier inventor deliberately released into the public domain, and it reflects incredibly poorly on Google to keep fighting for this.

A Polish professor, Jarek Duda, came up with a new compression technique known as asymmetric numeral systems (ANS) years back, and decided to release it to the public domain, rather than lock it up. ANS has turned out to be rather important, and lots of companies have made use of it. Last summer, Duda noticed that Google appeared to be trying to patent the idea both in the US and around the globe.

Tragically, this happened just weeks after Duda had called out other attempts to patent parts of ANS, and specifically said he hoped that companies “like Google” would stand up and fight against such attempts. Three weeks later he became aware of Google’s initial patent attempt and noted “now I understand why there was no feedback” on his request to have companies like Google fight back against attempts to patent ANS. In that same thread, he details how there is nothing new in that patent, and calls it “completely ridiculous.” Despite noting that he can’t afford to hire a patent lawyer, he’s been trying to get patent offices to reject this patent, wasting a bunch of time and effort.

The bottom line is, irrespective of Google’s disgusting behaviour, the USPTO should stop tolerating software patents. These have caused misery and brought about nothing but agony. The Supreme Court made it rather clear that no such patents should be granted anymore (assuming that the patent office does not wish to grant patents courts would later reject). So one might say that the real problem here boils down to the patent office, which Google simply seeks to game/exploit. Like many other companies do…

04.13.18

David Barcelou May or May Not be a Patent Troll, But He is Certainly a SLAPPing Bully and Watchtroll is Fine With It

Posted in America, EFF, Law, Patents at 4:25 pm by Dr. Roy Schestowitz

“People disagree with me. I just ignore them.” ~Linus Torvalds

Summary: Like a thin-skinned person/entity (which many in the patent microcosm are), David Barcelou and Automated Transactions (“ATL”) SLAPP their critics and surprisingly enough it’s Watchtroll, who has been threatened by WIPO, coming to the bully’s rescue (double standards)

THE USPTO‘s decades of poor patent grants are a liability. It’s a toxic legacy which empowered patent trolls. As Daniel Nazer (EFF) put it about an hour ago: “Examiners spend an average of ~18 hours per app, roughly half on prior art. It’s no great insult to patent examiners that litigators with huge budgets and expert help find better art. Of course they do.”

The CCIA recently wrote something similar.

“The EFF’s Daniel Nazer (in his capacity as EFF staff) revealed that Automated Transactions (“ATL”) is also a SLAPPing troll, not just a patent troll, like those who send us threats by post.”Daniel Nazer isn’t really the subject of this issue, but he happens to be the main carrier of a message. It’s actually about David Barcelou. The EFF’s Daniel Nazer (in his capacity as EFF staff) revealed that Automated Transactions (“ATL”) is also a SLAPPing troll, not just a patent troll, like those who send us threats by post. Calling patent trolls what they are is perfectly lawful, especially in the US, but being the bullies that they are, they don’t care about the law; they attempt to twist everything and they just try to cause damage to their victims (of legal harassment). Posted about a day ago at the EFF’s Web site: [via]

A New Hampshire state court has dismissed a defamation suit filed by a patent owner unhappy that it had been called a “patent troll.” The court ruled [PDF] that the phrase “patent troll” and other rhetorical characterizations are not the type of factual statements that can be the basis of a defamation claim. While this is a fairly routine application of defamation law and the First Amendment, it is an important reminder that patent assertion entities – or “trolls” – are not shielded from criticism. Regardless of your view about the patent system, this is a victory for freedom of expression.

The case began back in December 2016 when patent assertion entity Automated Transactions, LLC (“ATL”) and inventor David Barcelou filed a complaint [PDF] in New Hampshire Superior Court against 13 defendants, including banking associations, banks, law firms, lawyers, and a publisher. ATL and Barcelou claimed that all of the defendants criticized ATL’s litigation in a way that was defamatory.

This started a sort of ‘chain letter’ between troll apologists (like Watchtroll) and Nazer, who wrote: “This defamation case received breathless coverage from @ipwatchdog that didn’t even mention the glaring First Amendment issues raised by the complaint. [] I thought this was pretty striking because IP Watchdog has itself been the recipient of some bullying defamation threats – I figured the publication might cover defamation with at least an awareness of the free speech issues at stake. [] Do you think it was an oversight for a legal blog to write about that complaint without even mentioning the First Amendment?”

That’s rather interesting and people took note of it; and on it goes: “Weird that the Court just dismissed the Complaint on First Amendment grounds then. The judge must not understand the First Amendment as well as you do. [] That’s right, Gene. Just as I’m sure your statement that the 1A doesn’t protect falsity was made after deep consideration of the nuances US v Alvarez – why would I dare challenge such a scholar of the First Amendment? [] They’re equivalent in the important sense that the 1A rightly protects both (I even liked your Gurry post, not that that’s relevant, I read it before it got taken down). Here’s the opinion by the way. A very routine application of 1A and defamation law…”

“If it’s actually a “watchdog”, then we know whose…”Well, patent maximalists typically protect patent trolls irrespective of anything, including the Rule of Law. Watchtroll is much of the same, which is why we call it that (for nearly a decade now). We rarely make up names for sites unless they’re really bad. Watchtroll is probably the only in this category because let’s face it, who is it a watchdog for if not trolls?

If it’s actually a “watchdog”, then we know whose…

Watchtroll then responded by insinuating that Nazer works for billionaires (the one Watchtroll habitually insults). He said: “Surprise! Surprise! @danielnazer Staff Attorney and Mark Cuban Chair to Eliminate Stupid Patents, called me out on Twitter, but now is afraid to a real live debate. I’ve challenged him multiple times, willing to debate on his turf too. Funny how folks like him only talk big.”

“Maybe we can ship Watchtroll 200 years back into the past where he can handwash his clothes and talk about how Web pages (as in Standard Generalized Markup Language) are “computer programs”.”Watchtroll does not debate; I attempted to debate him, but he blocked me and ran away after he had lost the debate. A few hours ago Watchtroll (Gene Quinn) wrote about this and then proceeded to inane “MAGA”-type nonsense, under the headline “America Needs an Eighteenth-Century Patent System”.

Yes, he actually typed that into the headline! Maybe we can ship Watchtroll 200 years back into the past where he can handwash his clothes and talk about how Web pages (as in Standard Generalized Markup Language) are “computer programs”. He actually said this repeatedly. He’s a clueless bully who just throws a fit when losing an argument. He’s nontechnical. Debating him on technical matters is like debating Creationists about science.

02.26.18

Artificial Intelligence is Just Software, So EFF Misses the Point/Reason Why USPTO Should Reject Such Patents

Posted in America, EFF, Patents at 1:50 am by Dr. Roy Schestowitz

It’s about Alice, not just public interest

20 Buzzwords you have to know in Artificial Intelligence
Reference: 20 Buzzwords you have to know in Artificial Intelligence

Summary: The recent hype about Artificial Intelligence (AI) — hype that further dominated the media over the past couple of months — spurred a response from the Electronic Frontier Foundation (EFF), which could probably make a stronger argument against software patents that are being labeled "AI"

THE Manual of Patent Examining Procedure (MPEP) at the USPTO is noteworthy. Examiners should no longer grant software patents, no matter how patent attorneys attempt to disguise these. In Europe, for example, EPO examiners see all sorts of software patent applications (or categories) with buzzwords like “4IR”.

The other day we saw this patent maximalists’ site speaking of the subject under “USPTO Releases Revised MPEP”. To quote: “The U.S. Patent and Trademark Office announced via a Patent Alert e-mail last month that the Ninth Edition, Revision 08.2017 of the Manual of Patent Examining Procedure (MPEP) has been released. The new version of the MPEP includes changes to chapters 200, 700-1000, 1200, 1400, 1500, 1800, 2000-2300, 2500, and 2700. According to the Office’s Alert, Appendices L and R have been revised to include laws and rules as of August 31, 2017, and Appendices T and AI have been revised to reflect the PCT Articles, Rules, and Administrative Instructions that were in force as of July 1, 2017.”

No indication yet of anything related to Alice, which remains in tact and in force under Section 101.

In the meantime, the EFF’s Vera Ranieri says that “we should give people limited monopolies in the hopes that overall, we end up with more innovation (whether this is actually true, particularly for software, is debatable).”

It’s part of a long post titled “The Federal Circuit Should Not Allow Patents on Inventions that Should Belong to the Public” and it speaks specifically about software patents (among other things). To quote:

One of the most fundamental aspects of patent law is that patents should only be awarded for new inventions. That is, not only does someone have to invent something new to them in order to receive a patent, is must also be a new to the world. If someone independently comes up with an idea, it doesn’t mean that person should get a patent if someone else already came up with the same idea and told the public.

There’s good reason for this: patents are an artificial restraint on trade. They work to increase costs (the patent owner is rewarded with higher prices) and can impede follow-on innovation. Policy makers generally try to justify what would otherwise be considered a monopoly through the argument that without patents, inventors may never have invested in research or might not want to make their inventions public. Thus, the story goes, we should give people limited monopolies in the hopes that overall, we end up with more innovation (whether this is actually true, particularly for software, is debatable).

A few days later IP Watch wrote about the EFF, but only after it had brought up the “Artificial Intelligence” hype once again (an article behind paywall). These were posted in conjunction actually and the latter headline said: “Patenting Artificial Intelligence Might Hamper Progress, EFF Says”

“Patenting Artificial Intelligence” is patenting software because that’s what “AI” is; it’s software. Such patents are not supposed to be granted anymore, but will examiners understand it? To quote IP Watch:

The Electronic Frontier Foundation launched a project last year to measure progress in artificial intelligence innovations and understand the legal, political, and technical issues potentially raised by those inventions. Some eight months later, the project has tracked rapid progress of those technologies, in particular in machine learning. According to the foundation, patents might be hampering the progress of artificial intelligence, and with the risk of patent trolls claiming rights on patents on machine learning systems.

[...]

“Patents don’t seem to be assisting this cascade of invention in the slightest, and there’s good reason to fear that intellectual property can only hamper the progress of artificial intelligence as a field,” he said.

“We can be sure than in five to ten years, patent trolls will be popping up everywhere, claiming to hold patents on all of the machine learning techniques that are currently being invented in universities and commercial research labs, and generally published openly on arXiv and GitHub,” he added.

While this is true (a lot of the code being Free/libre software), it’s baffling to see the EFF framing this as a matter of “hampering the progress of artificial intelligence” etc. Why not just state the obvious? These are algorithms, Alice voids patents on algorithms, and thus all those patents on “AI” should be rejected. It has long been known that patents on algorithms are hampering progress in society, irrespective of whether we call these algorithms “AI” or not.

02.09.18

Joe Mullin Joins the EFF to Fight Mean Software Patents, Starting With Coverage About Unified Patents Defeating Sportbrain

Posted in America, EFF, Patents at 5:59 pm by Dr. Roy Schestowitz

Related: CAFC Meddling in PTAB Affairs; Unified Patents Fights a Good Fight by Invalidating Software Patents

Joe Mullin
Joe Mullin’s Twitter account

Summary: The Patent Trial and Appeal Board (PTAB) has just smashed another troublesome patent and Joe Mullin was there, this time in EFF clothing, to cover it

THE previous post spoke about patent trolls with USPTO-granted patents and the EFF’s response to them. The good news is, not only does the EFF tackle the right issues (it used to have a poorer and rather misguided strategy). The EFF has just hired Joe Mullin for activism/journalism against software patents and patent trolls — something he had done in a blog before some media companies took him on board. Eventually he must have realised that advocacy without the whole pretense of “balance” would be better use of his time; at least that’s what happened with me (more than a decade ago I wrote for media companies, but they did not give me sufficient freedom to express myself).

“The EFF has just hired Joe Mullin for activism/journalism against software patents and patent trolls — something he had done in a blog before some media companies took him on board.”“I’m happy to report I’m working at @EFF now,” he announced in Twitter, “working mostly on IP-related things.

“Here’s my first blog post,” he wrote after had published this piece about Sportbrain [1, 2, 3] (covered here before). To quote:

The importance of the US Patent Office’s “inter partes review” (IPR) process was highlighted in dramatic fashion yesterday. Patent appeals judges threw out a patent [PDF] that was used to sue more than 80 companies in the fitness, wearables, and health industries.

US Patent No. 7,454,002 was owned by Sportbrain Holdings, a company that advertised a kind of ‘smart pedometer’ as recently as 2011. But the product apparently didn’t take off, and in 2016, Sportbrain turned to patent lawsuits to make a buck.

A company called Unified Patents challenged the ’002 patent by filing an IPR petition, and last year, the Patent Office agreed that the patent should be reviewed. Yesterday, the patent judges published their decision, canceling every claim of the patent.

The ’002 patent describes capturing a user’s “personal data,” and then sharing that information with a wireless computing device and over a network. It then analyzes the data and provides feedback.

After reviewing the relevant technology, a panel of patent office judges found there wasn’t much new to the ’002 patent. Earlier patents had already described collecting and sharing various types of sports data, including computer-assisted pedometers and a system that measured a skier’s “air time.” Given those earlier advances, the steps of the Sportbrain patent would have been obvious to someone working in the field. The office cancelled all the claims.

That means the dozens of different companies sued by Sportbrain won’t have to each spend hundreds of thousands of dollars—potentially millions—to defend against a patent that, the government now acknowledges, never should have been granted in the first place.

Joe Mullin was debunking patent myths and naming trolls even recently (he had covered other topics too). He often referred to (and cited) EFF posts, but now he’s joining Ranieri and Nazer (there used to be more staff assigned to deal with the patent matters)‏. He’ll be working alongside them rather than writing about them. Mullin is a very knowledgeable person; I spoke to him on the phone last year.

Sportbrain’s patent has been “found invalid,” Unified Patents said some days ago (a day after it was confirmed). We saw that almost immediately because we’re subscribed to the RSS feed. To quote: “On February 6, 2018, the Patent Trial and Appeal Board issued a final written decision in Unified Patents Inc. v. Harry Heslop & Sportbrain Holdings, LLC, IPR2016-01464 invalidating all challenged claims of U.S. Patent 7,454,002, owned and asserted by Sportbrain Holdings, LLC. The ’002 Patent, which describes a system for monitoring and providing feedback on a user’s physical data, has been asserted 148 cases (17 of which were pending at the time of this decision). Defendants in these cases span across multiple industries and include such companies as Verizon, Fitbit, Microsoft, LG, TomTom, Garmin, Louis Vuitton, ZTE and Apple.”

“Joe Mullin was debunking patent myths and naming trolls even recently (he had covered other topics too).”Apple is named last. Apple very recently settled in patent dispute, shelling out $871,500. It could possibly just fight against that patent until the end, but it chose not to. Less than a million dollars is ‘slush funds’ to Apple. As the article notes, it recently paid far more to settle other patent cases.

PTAB has been doing very well lately and we’ll have a lot to say about it over the weekend. To quote some recent statistics: “On January 31, the PTAB Affirmed Examiners’ 101 Rejections for 9 Cases; Denied Reconsideration of 101 Rejections in 3 Cases and Reversed Examiners’ 101 Rejections in 2 Cases.”

“In the past 2-3 years — and not just owing to Alice — we often get the feeling that we’re finally ‘winning’ (as some might put it) and the US patent system gets reformed to better suit science and technology, not patenters and litigators.”So they deal with quite a few patent applications, not just patents that are either used in litigation or for threats of litigation. This helps limit patent scope. One journalist focused on patent matters said the other day that “Senator Susan Collins told @BloombergLaw the Special Committee on Aging is working to draft a bill to restrict certain types of patents on drugs, such as new formulations, to limit evergreening, reports @BronwynMixter…”

“Fantastic news,” I responded to her. “A push back against patent maximalism, which made the patent system lose its sight on purpose…”

In the past 2-3 years — and not just owing to Alice — we often get the feeling that we’re finally ‘winning’ (as some might put it) and the US patent system gets reformed to better suit science and technology, not patenters and litigators. That’s the desirable thing for a patent system anywhere.

The EFF, in Tackling Software Patent Trolls, Turns to Motivational Health Messaging; Craig Daniels Spills the Beans on Packet Intelligence

Posted in EFF, Patents at 5:26 pm by Dr. Roy Schestowitz

Even without the founder, who died a few days ago, the EFF carries on with his battles

John Barlow

Summary: Even after the unfortunate death of John Barlow the EFF continues to expose and fight against patent trolls, whose victims would otherwise remain unnamed and their stories untold

THE USPTO granted plenty of terrible patents over the years. Many of these patents landed on the laps of patent trolls and Motivational Health Messaging is one such patent troll. We wrote about it before. Basically, patent trolls are engaging in blackmail using (typically) bogus patents, so they pick on relatively small companies that have a greater incentive to settle than to fight in court, potentially invaliding the patents. The EFF has one new story about this troll:

Trying to succeed as a startup is hard enough. Getting a frivolous patent infringement demand letter in the mail can make it a whole lot harder. The experience of San Francisco-based Motiv is the latest example of how patent trolls impose painful costs on small startups and stifle innovation.

Motiv is a startup of fewer than 50 employees competing in the wearable technology space. Founded in 2013, the company creates fitness trackers, housed in a ring worn on your finger.

In January, Motiv received a letter alleging infringement of U.S. Patent No. 9,069,648 (“the ’648 Patent”). The letter gave Motiv two options: pay $35,000 to license the ’648 Patent, or face the potential of costly litigation.

The ’648 Patent, owned by Motivational Health Messaging LLC (“MHM”), is titled “Systems and methods for delivering activity based suggestive (ABS) messages.” The patent describes sending “motivational messages,” based “on the current or anticipated activity of the user,” to a “personal electronic device.” It provides examples such as sending the message “don’t give up” when the user is running up a hill, or messages like “do not fear” and “God is with you” when a “user enters a dangerous neighborhood.” Simply put, the patent claims to have invented using a computer to send tailored messages based on activity or location.

To a certain degree, there’s a massive racket between patent lawyers (or law firms) and patent trolls because they create ‘business’ for each other. It’s hardly surprising that these law firms and trolls habitually attack the EFF for its work in this domain.

There’s another new troll story making the rounds right now. Craig Daniels explained how Sandvine got targeted by a patent troll called Packet Intelligence LLC. We wrote about it a few times before. Here’s how the story began:

The shot across the bow, the splash in the water that signalled an adversary had appeared on the horizon and was spoiling for a fight, came in February, 2016.

“All of a sudden my phone started ringing,” recalls Dave Caputo, the former CEO of network optimization company Sandvine.

“And it was a bunch of law firms, many of them based in Dallas [saying] that, ‘We would love to represent you in your patent lawsuit.’

“I had no idea what the calls were about and thought, well, something must have happened.”

What had happened was Civil Docket No. 2:16-CV-147, filed in the United States District Court for the Eastern District of Texas, Marshall Division, by a three-person company called Packet Intelligence LLC.

Sandvine had been targeted in lawsuit by a patent troll. And those phone calls, which began on Feb. 17, 2016, would herald the beginning of a 21-month legal odyssey for Caputo and his senior executives as they worked to stake a claim to their company’s innocence and avoid paying a US$13.8-million demand for damages, plus ongoing royalties on future sales.

It was an odyssey that would eventually swallow up to US$2 million of Sandvine money in legal fees and additionally emerge as a cautionary tale for otherwise unsuspecting technology companies in Waterloo Region.

These sorts of stories are familiar; it happens many times every single day in the US, causing a lot of harm to companies which actually produce something. Well, hopefully these trolls will die soon. US-based patent trolls are, in general, a dying breed.

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