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12.01.18

Google Keeps Reminding the World That It’s Part of the Patent Menace Rather Than a Solution to That

Posted in Google, Patents at 5:30 am by Dr. Roy Schestowitz

Google is no opponent of software patents, either. It plays an instrumental role in LOT Network.

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: Owing to a tip sent by a reader we now have yet more evidence that Google is shameless about taking other people’s ideas and turning them into Google monopolies (patents)

THE U.S. Patent and Trademark Office (USPTO) recently rejected/declined a patent award after Google had ripped off Dr. Jarosław Duda (Jarek Duda). We wrote about it several times in recent months. It’s a pretty big deal not just because of the ripoff; it’s a software patent application. Here’s some background:

Writing to us regarding an interactive book from MIT Media Lab, a reader highlighted this new thread (“Google Tried to Patent My Work After a Job Interview”), which “also rises at Reddit,” this reader pointed out in relation to this Reddit thread. Authored by Jie Qi (Berkman Klein Center, MIT Media Lab) is this original post, which refrains from naming Google in the title/headline but makes it perfectly clear who the culprit is:

So we had a call directly with their team. As part of negotiations, they offered to add me as an inventor on the patent application if it meant the application could stand. I said no, because in order for me to be an inventor on they patent they would have to add all the other inventors who have contributed to blending books and electronics—I’m not the only one working on this!

What I didn’t realize at the time is that there’s actually a huge difference between inventor and assignee.

An inventor is the one credited with coming up with the idea for an invention. The assignee actually gets the legal rights to the patent. It’s a bit like how an architect (the “inventor”) may design a house but it’s the home owner (the “assignee”) that gets to live in it, and very often those aren’t the same people. It’s the same situation here: Google ATAP would’ve still owned the patent rights even if I got to be listed as an inventor. Meaning even though I would be on the patent and get credit for the work, I wouldn’t actually get rights to use the invention. Luckily I dodged that one, even though it was by accident!

Next the strange thing was that about a couple weeks into the conversation, Regina left Google ATAP. In the process, she put us directly in touch with ATAP’s senior council, who thankfully agreed to submit all of the prior art we had sent them to the USPTO as prior art for the patent application.

So here they go again at Google, trying to get patents on other people’s ideas. It is perfectly clear, therefore, that Google remains part of the problem. We pointed this out recently in relation to the Google-centric ‘Prior Art Archive’ and prior to that LOT Network [1, 2].

10.21.18

Data Engine Technologies (DET) Just One Among Many Microsoft-Connected Patent Trolls That Pick on Microsoft’s Biggest Competitors

Posted in GNU/Linux, Google, Microsoft, OIN, OpenOffice, Patents at 5:57 pm by Dr. Roy Schestowitz

Data Engine Technologies (DET) and Acacia Research Corp.

Summary: Lawyers’ articles/blog posts continue to obscure the fact that Data Engine Technologies is merely a satellite or unit (one among many) of patent trolling giant Acacia Research Corp., connected to Microsoft and sporting a long history of lawsuits against GNU/Linux

As covered in an earlier post last weekend, potential ‘satellites’ of Microsoft are still attacking Microsoft’s biggest rivals using software patents.

Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) wrote about a patent troll connected to Microsoft through Acacia, but like many others he overlooked or missed out the Acacia connection, having published his detailed analysis in a couple of places to say:

Data Engine Technologies (DET) filed an infringement suit against Google in the District of Delaware contending infringement of U.S. Patent Nos. 5,590,259, 5,784,545, 6,282,551, and 5,303,146. Google responded with a Rule 12(c) motion arguing that the patents are directed to patent-ineligible subject matter under 35 U.S.C. § 101. The District Court agreed and invalidated the patents. DET appealed.

In Alice Corp. v. CLS Bank Int’l, the Supreme Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under § 101. One must first decide whether the claim at hand is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea. If so, then one must further decide whether any element or combination of elements in the claim is sufficient to ensure that the claim amounts to significantly more than the judicial exclusion. But generic computer implementation of an otherwise abstract process does not qualify as “significantly more,” nor will elements that are well-understood, routine, and conventional lift the claim over the § 101 hurdle.

[...]

I have to agree with PatentlyO, which viewed as “fairly questionable” the reasoning under which the notebook tab was the linchpin for patent-eligibility. And if you contrast the surviving Tab Patent claims with the claims that were held ineligible, this case certainly seems to equate claim breadth with patent-ineligibility – perhaps confirming that, as many of us suspect, an “abstract idea” is simply a really broad idea. In any event, decisions like this highlight the not-infrequent anomaly that claims can survive novelty and obviousness challenges, but fail on patent-eligibility. And as we saw here, the present court’s analysis, stripped down to what it really was, had a lot to do with obviousness.

Dozens of long paragraphs about this decision from Judges Reyna, Bryson, and Stoll (with opinion by Judge Stoll) and Acacia not mentioned even once? It already sued major GNU/Linux companies several times after it had hired from Microsoft. Now it goes after Google, specifically the biggest rival to Microsoft’s cash cow, Microsoft Office.

This same case was mentioned by Charles Bienema, who also overlooked the connection when he focused on patent scope:

Some claims directed to a computer spreadsheet are patent-eligible, while others are not, said the Federal Circuit in Data Engine Techs. LLC v. Google LLC (Fed. Cir. 2018) (precedential). The District of Delaware had granted a Rule 12 judgment on the pleadings of 35 U.S.C. § 101 invalidity of claims of U.S. Patent Nos. 5,590,259; 5,784,545; 6,282,551; and 5,303,146; the Federal Circuit thus reversed-in-part, affirmed-in-part, and remanded.

The three surviving patents (with the exception of one independent claim which had a patentable dependent claim), the ’259, ’545, and ’551) were dubbed the “Tab Patents.” The Tab Patents purportedly solved the problem that “complex commands” were required by “prior art three-dimensional or multipage electronic spreadsheets.” The patent-eligible solution was “a notebook-tabbed interface” to provide users with easy navigation through three-dimensional spreadsheet. Why? Because the notebook tab “allowed computers, for the first time, to provide rapid access to and processing of information in different spreadsheets, as well as easy navigation in three-dimensional spreadsheets.”

A widely-spread article [1, 2] by Joseph Saphia and Bonnie L. Gaudette (Haug Partners) said this:

On October 9, 2018, the Federal Circuit added to its growing collection of favorable Alice step one rulings1 by reversing portions of a decision from the U.S. District Court for the District of Delaware concerning an invention aimed to streamline the technology of electronic spreadsheets—a technology that has been around for twenty-five years. See Data Engine Technologies LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412 (Fed. Cir. Oct. 10, 2018). The Federal Circuit’s decision may be viewed as a not-so-gentle reminder to patent applicants and drafters alike to continue to draft software patent claims narrowly and with specificity if they wish to survive patent eligibility challenges under 35 U.S.C. § 101 and Alice step one.

The court commenced its opinion with a robust overview of Data Engine’s patents-at-issue: U.S. Patent Nos. 5,590,259; 5,784,545; and 6,282,551 (the “Tab Patents”) and U.S. Patent No. 5,303,146 (the “’146 Patent”). See Data Engine, at *2-12. The Tab Patents are entitled “System and Methods for Improved Spreadsheet Interface With User-Familiar Objects.” Id. at *1-2. In its detailed review of the Tab Patents, the court noted that they claim “systems and methods for making complex electronic spreadsheets more accessible by providing familiar, user-friendly interface objects—specifically, notebook tabs—to navigate through spreadsheets while circumventing the arduous process of searching for, memorizing, and entering complex commands.” Id. at *2. In essence, the Tab Patents aim to overcome some of the challenges users encountered when navigating electronic spreadsheets due to complex menu systems that “diminished the utility and ease of use of this technology.” Id. at *3. In an attempt to offer a solution to the challenges of prior art multipage electronic spreadsheets, the Tab Patents are directed to “implementing a notebook-tabbed interface, which allows users to easily navigate through three-dimensional electronic spreadsheets” and “conveniently flip through several pages of notebook to rapidly locate information of interest.” Id. at *4-5. The ’146 Patent is entitled, “System and Methods for Improved Scenario Management in an Electronic Spreadsheet” and is directed to tools that permit “electronic spreadsheet users to track their changes” automatically, as opposed to manually, when testing a multitude of modeling scenarios. Id. at *10-11.

Yes, patents on user interfaces are still being tolerated in the US, at least in the Federal Circuit. Charles Bieneman classifies these as “Software Patents” and recalls a related albeit older case on which he says: “Claims directed to an “information management and real time synchronous communications system for configuring and transmitting hospitality menus” were held patent-ineligible under 35 U.S.C. § 101 and the Alice abstract idea test in Ameranth, Inc. v. Pizza Hut, Inc., No. 3-11-cv-01810 (S.D. Cal. Sept 25, 2018). The court thus granted the defendants’ motion for summary judgment that U.S. Patent No. 8,146,077 is unpatentable.”

“This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing.”“The patent owner,” he later added, “tried to rely on two Federal Circuit decisions, Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. (2018), and Visual Memory LLC v. NVIDIA Corp. (2017), as well as a recent district court case. But these cases were distinguishable…”

We covered this before. The above comes from a blog that advocates software patents. Generally speaking, software patents are the joke of all jokes. Not innovation at all. But lobbying from patent law firms has made the unthinkable reality. Bieneman accepted defeat when he wrote about another more neglected case (because it’s a district court): “Agreeing that patent claims “are directed to the abstract idea of facilitating cross-marketing relationships and fail to add any inventive concept” under 35 U.S.C. § 101 and the Alice/Mayo abstract test, Delaware’s Judge Stark granted a Rule 12(b)(6) motion to dismiss a complaint alleging infringement of claims of U.S. Patent No. 8,768,760. DiStefano Patent Trust III, LLC v. LinkedIn Corp., C.A. No. 17-1798-LPS-CJB (D. Del. Sept. 28, 2018).”

“OIN cannot do anything about such a racket.”Why was such a ridiculous patent granted in the first place? The headline should be a “duh” moment: “Linking Web Pages to Each Other Not Patent-Eligible” (based on prior art too, not just obviousness and abstractness).

As the above (main) story shows, however, merely adding tabs to spreadsheets is still considered innovative. The high court considers or determines this to be patent-eligible. This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing. Will the troll go after them too while Microsoft claims to have reached a “truce” and looks the other way? The only known ‘cure’ is buying Microsoft ‘protection’ in the form of “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] — a racket that extends to trolls Microsoft can control. OIN cannot do anything about such a racket.

MIT and the Prior Art Archive Perpetuate Existing Problems

Posted in America, Apple, GNU/Linux, Google, IBM, Microsoft, OIN, Patents at 11:37 am by Dr. Roy Schestowitz

There’s a reason why similar initiatives perished in the past

Strata Center MIT
Strata Center MIT

Summary: Large companies with many tens of thousands of patents (each) would have us believe that broadening access/reach of prior art (e.g. to patent examiners) would solve the issues; This may very well work for these large companies, but it overlooks the broader picture

COMPANIES like Apple, Microsoft and IBM — large companies that cross-license among themselves — don’t fear the USPTO or even patents in general (not even the EPO where they have a lot patents of their own). The patent system has, with few exceptions, served them well. It protects them. It’s a form of protectionism.

20 years after its foundation Google has already joined this ‘club’; instead of reforming things Google is adapting and so does Red Hat. To companies like these, which use GNU/Linux extensively, OIN and the likes of it represent a solution. Google backs LOT Network, which is similar.

Recently, together with a bunch of other large companies (Cisco, Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce are named below), Google pushed the “Prior Art Archive”; MIT’s self-promotional new piece about it gives a rather foggy idea; it even quotes MIT staff and no critics/sceptics. It doesn't help much when they focus on prior art rather than patent scope and obviousness (among other things). To quote MIT’s own site:

Two years later, a company applies for a patent on your invention. Once the application is granted, the company not only begins profiting from your device, but launches a lawsuit against you, the inventor, for infringing their patent.

This is the danger faced by researchers and developers alike, because the limits of existing content repositories means it is often a struggle for patent examiners to find what they call prior art — evidence that an invention is already known — relating to an application. That means that some applications that should be rejected are wrongly approved.

[...]

Cisco has already uploaded 165,000 documents into the archive, and a number of companies have committed to take part in the initiative, including Dell, Intel, AT&T, Amazon, Microsoft, and Salesforce. Google has also assisted the project with classification technology that will be used in the system.

As we explained earlier this month, this serves to distract from other efforts and put examination efforts in the hands of the public, essentially outsourcing or crowdsourcing the work (for corporate gain). When examiners use the archive they may get a false sense of search exhausion.

10.14.18

Federal Circuit Doubles Down on User Interface Patents, Helps Microsoft-Connected Patent Trolls Curtail the Prime Competitor of Microsoft Office

Posted in Google, Microsoft, OIN, Patents at 8:29 am by Dr. Roy Schestowitz

Dan Bricklin
Dan Bricklin, photographed by Betsy Devine at a blogger brunch in Boston’s Chinatown 2/25/2007. Licence: CC BY 2.5

Summary: Patent trolls that are connected to Microsoft continue to sue Microsoft rivals using old patents; this time, for a change, even the Federal Circuit lets them get away with it

THE Federal Circuit (CAFC) with its current Chief Judge (Prost) is rather different from what it used to be. Perhaps it learned to accept that reversals by SCOTUS must end, not by means of changing SCOTUS itself but by getting rid of corrupt judges like Rader (he actually got caught).

Today’s CAFC is supportive of Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) and typically affirms PTAB’s decisions — a topic we shall write about separately in view of newer/latest determinations. 35 U.S.C. § 101 at the U.S. Patent and Trademark Office (USPTO) has enabled both PTAB and CAFC to rule out patents quite promptly, without having to engage in a lengthy process like search and assessment of prior art.

“Back in 1992,” Patently-O recalled for those who forgot, “Borland Software invented a tabbed spreadsheet for its Quattro Pro that was then copied by Excel, Google Sheets, and others. Today, the Federal Circuit finally found the patent claims enforceable (or at least patent eligible).”

Microsoft copied everyone, but nowadays it is suing everyone, including Corel.

Found initially via [1, 2, 3] was this article/blog post titled “Tabbed Spreadsheet — Patent Eligible”. It’s what Patently-O covered along/after the above tweet:

D.Delaware Judge Stark dismissed DET’s case on the pleadings — holding that the Borland/DET spreadsheet-tab patent claims were directed to abstract ideas. On appeal, the Federal Circuit has partially reversed — finding that some of the claims are directed toward “specific improved method for navigating through complex three-dimensional electronic spreadsheets” and thus are patent eligible. The decision here is authored by Judge STOLL and joined by Judges REYNA and BRYSON.

The patents at issue here basically cover the use of tabs in a spreadsheet document. You might be thinking – “WHAT I’VE BEEN USING TABS FOR 25 YEARS” — at least that is what I was thinking. The thing is that DET’s patents were invented by folks at Borland Software — baker of Quattro Pro — and claim priority back to 1992. BOOM! Microsoft came out with its tabbed version of Excel in 1993 following Borland’s release. Back then I used Quattro Pro – and tabs were awesome. The case here is against Google for its tabbed sheets.

As you’ll see below, the claims include a “notebook tab” — and that feature seems to be the key for patent eligibility. This aspect of the decision makes it fairly questionable.

I’ll note that this case may well fit into the IP case-books as a companion to the 1996 Supreme Court case on spreadsheet menu copyright. Lotus Dev. Corp. v. Borland Int’l, Inc., 516 U.S. 233 (1996).

“CAFC only exists to be reversed by SCOTUS,” Carlo Piana wrote about it (he became famous for his Samba lawyering).

Benjamin Henrion said: “Despite Alice, CAFC just founds “tabs in a spreadsheet” to be patent eligible. Software patents are back, specialized patent courts are dangerous, biased, populated by the patent establishment, and don’t want to listen http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/17-1135.Opinion.10-9-2018.pdf …”

“It’s actually not so unusual for CAFC,” I told Henrion, “as not too long ago they said OK to other GUI patents; not exactly the same as algorithms/callback functions…”

We wrote about this as recently as January. To Piana I said: “That was true when Rader, the corrupt man, was in charge. His successor is OK and CAFC improved…” (under Prost)

Paul Redmond Michel was also pretty bad (he still is), but unlike Rader he was not corrupt.

Since the above alludes to spreadsheets, noteworthy is also coverage about Microsoft’s ‘proxy’ Acacia. These patent trolls of Microsoft continue to sue Microsoft’s rivals using dubious software patents. To quote Law 360:

The Federal Circuit on Tuesday reversed a lower court’s invalidation of three patents asserted against Google LLC by a unit of patent licensing company Acacia Research Corp.

So a unit of a patent troll of Microsoft (Acacia Research Corp.) sued Google, Microsoft’s main rival in this sector. Patently-O revisited the subject, citing/mentioning Dan Bricklin (the so-called father of spreadsheets):

This week’s decision in DET v. GOOGLE focuses on patent eligibility of a muti-sheet spreadsheet displayed with notebook tabs. The case is reminiscent of a 2014 Patently-O post by Howard Skaist written in the still roiling wake of Alice and Mayo. In his post, Skaist considered ways that the inventor of VisiCalc (Dan Bricklin) might have claimed the computerized spreadsheet he first created in 1979.

[...]

In some pre-Bilski writing, Dan Bricklin explained why he didn’t actually try to patent the spreadsheet.

After Alice these patents would be null and void anyway. Microsoft insists that it wants "truce" (as recently as days ago), but here we have a Microsoft-connected troll attacking another OIN member, Google. OIN has no way/mechanism for dealing with intermediaries.

10.09.18

The USPTO’s Principal Issue is Abstract Patents (or Patent Scope), Not Prior Art Searches

Posted in America, Courtroom, Google, Patents at 6:21 am by Dr. Roy Schestowitz

Obviousness (§ 103), prior art (§ 102) and scope (§ 101) not the same issue

Some coloured papers

Summary: In spite of the fact that US courts prolifically reject patents for being abstract (citing 35 U.S.C. § 101) Cisco, Google, MIT, and the USPTO go chasing better search facilities, addressing the lesser if not the wrong problem

THE conundrum associated with prior art is an old one. How can one search and identify similar past work? By what terms? By which means? Literature? Internet? What if the terms used aren’t the same? This is why examiners tend to be domain experts. Many are doctors and professors. The U.S. Patent and Trademark Office (USPTO) can attract quite a few of them, including the wife of the previous patent ‘chief’ at Patent Progress.

“Google is a private firm and it is itself a prolific patent applicant. That’s a potential conflict.”The principal issue at the USPTO isn’t prior art, however, but patent scope, judging by the number of US patents being ejected by the courts based on that criterion, e.g. 35 U.S.C. § 101. It’s a bit disappointing to see Google getting involved at patent offices in various capacities like searches, translations etc. Google is a private firm and it is itself a prolific patent applicant. That’s a potential conflict.

This morning we spotted Susan Miller’s article from yesterday (titled “Patent Office gets search help from tech industry heavyweights“). CCIA represents “tech” but a lot of “big tech” so the interests of small firms isn’t always in the mix. This is why the CCIA’s (or Patent Progress‘) Josh Landau was reasonably OK with this wrong 'solution' in yesterday’s post (titled “Cisco, Google, MIT, and USPTO Team Up To Create Prior Art Archive“) which said:

One of the biggest problems in patent examination is actually finding prior art. When it comes to patents and patent applications, that’s relatively easy—examiners have access to databases of all patents and applications, and they’re well-trained in searching those databases. But when it comes to non-patent prior art—product manuals, journal articles, standards proposals, and other such technical documents—that prior art is harder to find. Examiners are correspondingly less likely to cite to non-patent prior art.

Cisco and MIT, with some help from Google and the USPTO, are trying to help solve that problem. Their solution? The Prior Art Archive, a publicly accessible archive created with contributions from technical experts and industry stakeholders, designed to preserve and make searchable exactly the kind of non-patent prior art that’s currently hard to locate.

This is, as we’ve already explained over the weekend, the wrong ‘solution’ tacking the wrong ‘problem’. What we really need to explore is how to compel the USPTO to stop granting software patents that courts and sometimes inter partes reviews (IPRs) would invalidate anyway. How can examiners be made to realise that abstract patents are a thing of the past? The choice of the new Director isn’t helpful. He gives the examiners guidelines that limit their ability to reject abstract patents.

“The choice of the new Director isn’t helpful. He gives the examiners guidelines that limit their ability to reject abstract patents.”“Abstractness is not the malleable concept the Supreme Court thinks,” Peter Kramer wrote yesterday in Watchtroll. Still that sort of court- or SCOTUS-bashing in Watchtroll? These patent maximalists would also literally patent mathematical equations and paintings if they could…

There’s no point bashing judges and Justices; it would only further alienate them. SCOTUS is fine with a decision against patent maximalism, based on yesterday’s post from Patent Docs. It refuses to assess and decide on Regeneron Pharmaceuticals v Merus:

Last week, the Supreme Court denied certiorari to Regeneron Pharmaceuticals in its appeal of the Federal Circuit’s decision in Regeneron Pharmaceuticals v. Merus that affirmed the District Court’s decision that the claims of Regeneron’s patent-in-suit were unenforceable due to inequitable conduct in the patent’s procurement. In so doing the Court passed up the opportunity to consider whether the split panel’s decision was consistent with the Federal Circuit’s own inequitable conduct jurisprudence, most recently handed down en banc in Therasense, Inc. v. Becton, Dickinson and Co., 649 F.3d 1276 (Fed. Cir. 2011) (en banc). The Court also deigned not to consider for the first time in over 70 years a doctrine stemming directly from a trio of its own decisions (specifically, Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 250-51 (1944); Precision Instrument Mfg. Co. v. Auto. Maint. Mach. Co., 324 U.S. 806, 814 (1945); and Keystone Driller Co. v. General Excavator Co., 290 U.S. 240 (1933)). Under the circumstances it is prudent for patent practitioners (prosecutors as well as litigators) to consider the lessons of the Federal Circuit’s Regeneron decision.

We have meanwhile learned that the Patent Trial and Appeal Board’s (PTAB) inter partes reviews (IPRs) filed by Comcast have helped Comcast “Get Two More TiVo Patents Invalidated,” to quote this headline from a new article that says:

The U.S. Patent Trial and Appeal Board has once again sided with Comcast in its intellectual property battle with TiVo, invalidating two more of the latter’s patents.

The patents include No. 9,172,987, “Methods and Systems for Updating Functionality of a Set-top Box Using Markup Language”; and No. 8,713,595, “Interactive Program Guide Systems and Processes.” (No. 9,172,987 was ruled invalid on Sept. 7, while No. 8,713,595 was invalidated in an earlier Aug. 27 ruling.)

35 U.S.C. § 101 makes patents like these “fake” (enshrined as patents but not deserving this status). Fake patents or abstract patents surface in press releases all the time (examples from yesterday [1, 2] courtesy of OneTrust) and crushing them one by one would be expensive, not just time-consuming. It would be better if such patents never got granted in the first place.

“It would be better if such patents never got granted in the first place.”In the following new example, the Federal Circuit “found that the claims are directed to the abstract idea of “locating and sending product information in response to a request”,” based on yesterday’s article from Patently-O (reaching the Court of Appeals for the Federal Circuit (CAFC) with a patent case is extremely expensive). To quote:

The Federal Circuit has issued its R.36 Affirmance Without Opinion in the eligibility dispute: Product Association Tech. v. Clique Media Group (Fed. Cir. 2018). In the case, C.D. Cal Judge Wu dismissed the case on the pleadings under R.12(b)(6) — finding that the claims of U.S. Patent 6,154,738 invalid as a matter of law on subject matter eligibility grounds. In particular, the court found that the claims are directed to the abstract idea of “locating and sending product information in response to a request” and fail to include anything beyond the excluded idea sufficient to transform the claims into a patent-eligible invention. I’ll note here that I believe the invention is the brain child of retired patent attorney Charles Call, and is part of a family of five patents.

Another new example from CAFC involved the typical Newman dissent and the following final decision, citing obviousness rather than prior art:

In a split decision, the Federal Circuit affirmed the district court’s holding that the ZUP Board patent claims were invalid as obvious under § 103(a) because a person of ordinary skill in the art would have had a motivation to combine the prior art references in the method it claimed and further held that the district court properly evaluated ZUP’s evidence of secondary considerations. See KSR Int’l Co. v. Teleflex Inc., 550 U.S. 398 (2007) and Graham v. John Deere Co., 383 U.S. 1 (1966).

The Federal Circuit agreed with the district court’s conclusion that the ZUP Board patent merely identified known elements from prior patents (food bindings, handles etc.) and combined them. Further, the Federal Circuit agreed with the district court that ZUP’s purpose in so combining (helping riders maneuver between positions by focusing on rider stability) had been a longstanding goal of the prior patents – a goal predictably shared by many inventors in the industry. The Federal Circuit further concluded that because ZUP presented only minimal evidence of secondary considerations, ZUP did not “overcome” the strong showing of obviousness established by application of the other three Graham factors to the facts of the case. Chief Judge Prost authored the majority opinion that was joined by Judge Lourie.

As we said at the start, prior art seems like less urgent a matter and Google might give a false sense of prior art not existing. In our humble view, Google would be wiser to help examiners identify abstract patents and cut off the applicants as soon as possible. It would actually be a favour to applicants because nobody wants to brandish a patent (and potentially spend a lot of money on litigation) only to discover this patent is fake and rejected by courts at all levels.

10.06.18

Google ‘Prior Art Archive’ (for Patents) the Wrong Solution to the Wrong Problem

Posted in Google, Patents at 9:44 pm by Dr. Roy Schestowitz

Patent scope, not prior art, is the principal culprit

American sector

Summary: The American technology sector is being ‘protected’ by a cabal of large technology companies, which can very well deal with a breadth and wealth of low-quality patents — something that small companies cannot as they lack dedicated legal departments and cannot cross-license with a war chest of patents

THE issues associated with patents and patent trolls are well documented. They are generally understood by the public, too. But patent lawyers pretend that the only issue is that there are not enough patents, not enough lawsuits etc. (because they make money from these) and Google became a patent aggressor last year, which means that Google too is part of the problem.

“…Google became a patent aggressor last year, which means that Google too is part of the problem.”A few days ago a report emerged under the title “Google throws support behind Prior Art Archive” — something which isn’t really unprecedented. Google should, instead of perpetuating the scale of this maze, put its weight behind abolishing all software patents. Its work with patent offices like the EPO and USPTO (patent databases, patent translations, patent search) merely exacerbates matters. It gives the false impression that issues are being tackled. As WIPR put it:

Google has shown its support for the newly-launched Prior Art Archive by connecting it with its Google Patents database.

Launched yesterday, October 3, the Prior Art Archive was designed to address the problem of low-quality patents which, according to the initiative’s creators, should not have been granted in the first place.

The Prior Art Archive, which was created by the Massachusetts Institute of Technology, the US Patent and Trademark Office (USPTO) and technology company Cisco, will help USPTO examiners identify prior art and obvious technology.

Quoting the original, Ian Wetherbee (Tech Lead/Manager, Google Patents) and Mike Lee (Director, Head of Patents) decided to say: “A healthy patent system requires that patent applicants and examiners be able to find and access the best documentation of state-of-the-art technology.”

“Several years ago Google began stockpiling patents — software patents included — just like other giants in its domain.”That might not help, however, in rejecting applications based on how trivial the claims are.

Several years ago Google began stockpiling patents — software patents included — just like other giants in its domain. As we explained on Friday, a Google-centric aggregator of software patents (DPA) known as LOT Network is even being embraced by Microsoft, probably for the sole purpose of marketing a protection racket [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21].

“Google also makes money from patent translations.”So it should be generally accepted that Google isn’t part of the solution; it’s arguably part of the problem. Google also makes money from patent translations.

Lisa Ouellette, in yesterday’s post “Language Barriers and Machine Translation,” overlooks two key issues: 1) these translations are utterly incomprehensible for most languages, more so in technical domains and 2) one cannot digest millions of patents. Such a system is moot.

To quote this Associate Professor at Stanford Law School:

One of the more expensive parts of acquiring global patent protection is having a patent application translated into the relevant language for local patent offices. This is typically viewed simply as an administrative cost of the patent system, though my survey of how scientists use patents suggested that these translation costs may improve access to information about foreign inventions. As I wrote then, “[t]he idea that patents might be improving access to existing knowledge through mandatory translations and free accessibility is a very different disclosure benefit from the one generally touted for the patent system and seems worthy of further study.” E.g., if researchers at a U.S. firm publish their results only in English but seek patent protection in the United States and Japan, then Japanese researchers who don’t speak English would be able to read about the work in the Japanese patent.

I’ve also been interested in the proliferation of machine translation tools for patents—which can make patents even more accessible, but which also might limit this comparative advantage of patents over scientific publications if machine translation of journal articles becomes commonplace.

Meanwhile, another patent scholar and patent maximalist, Dennis Crouch, makes a stunning admission. It has been a slow news week for patents, so he makes public his notes to himself and then mentions some book that’s not even about patents. In there he admits that US standard for patentability is low when he tries to justify it as follows: “The US patent system fits this approach in some ways — one reason why we have 10,000,000+ patents is that the standard for patentability is low enough so that many many individuals experience sufficient genius. The problem though is that the hoops, tricks, and costs leave the patent system as an insider game not accessible to the vast majority are locked-out.”

“Deep inside Google knows that it can afford to spend a lot of money on tens of thousands of low-quality patents, then cross-license with other giants.”This is very wrong. Patents should not be mere trophies; awarding these may mean that they end up in the hands of patent trolls, causing a lot of trouble to real geniuses (which trolls aren’t). There’s a big difference between finding oneself in the literature (for attribution or credit) and receiving an actual monopoly which costs a lot of money to invalidate/disprove. Google may be trying to make patents (or applications) easier to invalidate/disprove, but it does nothing at all to raise the bar for patents. Deep inside Google knows that it can afford to spend a lot of money on tens of thousands of low-quality patents, then cross-license with other giants.

09.04.18

Marking One’s ‘Territory’ Using Software Patents

Posted in GNU/Linux, Google, Microsoft, Patents at 11:15 am by Dr. Roy Schestowitz

Puzzle missing

Summary: A maze or a complex puzzle of patents helps large companies guard their monopolies from competitors; it doesn’t seem to matter if all or at least the vast majority of these patents are bogus (it’s expensive to prove this and have these patents invalidated)

“Banks Hate Cryptocurrency, But Are Filing Patents Anyway,” Knobbe Martens (patent lawyers) wrote in a new headline. We recently wrote about how the USPTO had actively promoted such nonsensical, abstract patents. Such patents oughtn’t even exist!

A common hypothesis is that they try to destroy cryptocurrency firms (or the concept/movement as a whole) by threatening them with software patent lawsuits. We wrote about that several times in the past. It’s still more of a theory, but we’re already seeing notorious patent trolls (notably Erich Spangenberg) amassing these patents from filers. They basically use patents to ‘barbwire’ their ‘turf’ and scare anyone who ‘dares’ to compete/participate/grow.

“They basically use patents to ‘barbwire’ their ‘turf’ and scare anyone who ‘dares’ to compete/participate/grow.”Thugs and Mafiosos from Microsoft — i.e. those who constantly use patents for blackmail purposes — carry on pursuing a monopoly by targeting an Android-dominated sector with patent lawsuits (or threats thereof). Patently Apple again seems happy to celebrate these patents (it has been doing that a lot lately), perhaps knowing that Apple too sues OEMs in this Android- or Linux-led sector (using highly dubious patents on things like shapes).

Does Android and by extension Google deserve sympathy? Not really. Google has already gone rogue when it comes to software patents; Yesterday MyBroadband (South Africa) ended up reposting the EFF’s post from last week and IPPro Patents then wrote an article about it as well:

EFF to Google: stop trying to patent ANS

The Electronic Frontier Foundation (EFF) has called on Google to abandon its attempts to patent a data compression algorithm for video compression.

A recent patent filed by for a data compression algorithm called asymmetric numeral systems (ANS) for video compression was rejected by the US Patent and Trademark Office.

The examiner rejected all of the claims for lack of clarity and for claiming functions that are not described with sufficient detail.

The examiner also rejected the patent due to a third-party submission by Jarek Duda, who had been developing ANS for seven years and believed that Google’s patent application merely applied ANS to a standard video compression pipeline.

Why does Google even feel like it needs such a ridiculous patent? Prior art aside, it’s void as per Section 101/Alice. Does Google deliberately try to make itself look evil as well as dishonest? Does it want to challenge Microsoft to this title?

09.02.18

In the Post-Alice Era, in Spite of the Berkheimer Hype, the Patent Microcosm Finally Admits There’s No Turnaround

Posted in America, Google, Law, Patents at 2:34 am by Dr. Roy Schestowitz

Who’s still ‘pulling a Berkheimer’ anyway? Except for marketing purposes at patent law firms?

Pulling a Berkheimer

Summary: 35 U.S.C. § 101 or its high invalidation rate persists; much to the chagrin of Iancu at al Berkheimer isn’t going to change that

THE U.S. Patent and Trademark Office (USPTO) is led by patent maximalists now. It made it more apparent a few days ago, as we noted a few hours ago.

Decisions from the Federal Circuit are being cherry-picked and in spite of support from even the highest courts — SCOTUS included — for the Patent Trial and Appeal Board (PTAB) and inter partes reviews (IPRs) Iancu at al attempt to undermine both. This underlines the extent of the trouble the Office now faces. Patent quality is certainly a priority at the courts; the Office is still pursing just numbers and then it wonders why people complain about low legal certainty associated with US patents.

“…the Office is still pursing just numbers and then it wonders why people complain about low legal certainty associated with US patents.”It was recently shown, using an exhaustive analysis (published in Fenwick & West Blogs), that Berkheimer had made no real difference; the messengers were inadvertently showing that at times Berkheimer being brought up was a recipe for failure.

Those who are accustomed to 'pulling a Berkheimer' will no doubt continue to deny the facts, instead citing their “alternative facts”. Days ago, in another rant among many about PTAB (all he does is ranting about PTAB), Mr. Gross wrote: “congrats to founder of this small start-up https://www.thesmartphr.com/ beating ridiculous Alice 101 patent rejection at PTAB: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018006468-08-08-2018-1 … panel specifically calls out failure to follow Berkheimer memo on WURC standard!”

That’s very rare!

As noted a few days ago, first in Lexology and then in JD Supra (press release), “Months after” (as in, more than half a year later) it is “Business as Usual” for 35 U.S.C. § 101 invalidations. They allude specifically to Berkheimer and Aatrix (days or weeks apart some time back in the winter). White & Case LLP’s Bijal Vakil, Daren M. Orzechowski, Cale Tolbert and Michael Anthony Jaoude basically accept that all that “Berkheimer” hype was a lawyers’ lie. Concluding as follows: “Although only a few months have passed, District Courts seem generally unfazed by the Federal Circuit’s decisions in Berkheimer and Aatrix, continuing to decide cases at the motion to dismiss and summary judgment stages. Further time will tell whether these cases cause the disruption that many experts predicted five months ago or whether challenging eligibility will continue as usual.”

“Those who are accustomed to ‘pulling a Berkheimer’ will no doubt continue to deny the facts, instead citing their “alternative facts”.”No, not much has happened. We’ve been following this closely, as did Janal Kalis who gives another new example [PDF] when he writes: “The N. Dist. of California Killed the 23andMe Patent with Alice” (the usual, even at a district court, without a CAFC appeal).

Very good! Let’s hope for many more invalidations such as these. This one, for a change, we suppose Gross and Kalis can actually celebrate a little because it impacts negatively a company indirectly connected to Google (which they loathe).

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