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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).

06.28.18

Apple Loses Its Patent War Against Android and by Extension Against Linux

Posted in Apple, Courtroom, Google, Patents, Samsung at 3:08 am by Dr. Roy Schestowitz

“We’ve always been shameless about stealing great ideas.”

Steve Jobs

Judge Lucy Koh

Summary: The long battle that Steve Jobs embarked on nearly a decade ago (with his infamous term, going “thermonuclear”) reaches its end and Apple is nowhere near to what the now-deceased Jobs actually wanted because Android dominates the market and these lawsuits are profitable to nobody except law firms

BACK in 2010 we wrote a lot about Apple, particularly about its war on Android, which had begun with a ‘soft’ (vulnerable) target, HTC. Our interest in this case and subsequent cases (e.g. against Samsung) has since then dwindled, but we kept abreast of the more major developments.

“From a legal perspective this case isn’t as interesting as other cases, but the sums (so-called ‘damages’) are higher, so patent extremists were quick to boost it.”Apple and Samsung finally settle, but we weren’t sure if we should bother writing about this because it’s covered very widely already. Like everything “Apple”, when it comes to patents literally all the major papers cover it (while ignoring much more important patent news). That’s not exactly fine, but this is the world we live in and if some headline says “Apple”, then people are more likely to click on it (than a headline that says “§ 101″ or something equally vague to most people).

But really, how can we just ignore such news? The patent maximalists’ sites, e.g. Michael Loney’s, have begun covering it. “Apple and Samsung apparently just settled their patent dispute,” Mark Lemley wrote yesterday and soon thereafter came a lot of media coverage. Sites about patents wrote about it, albeit we can expect a lot more from them in days to come. From a legal perspective this case isn’t as interesting as other cases, but the sums (so-called ‘damages’) are higher, so patent extremists were quick to boost it. They wrote about it last night.

“Just remember that Apple started this dispute and was the bully all along.”So did technology news sites, Android sites, Apple sites, Android-centric news sites like this, corporate media and its “tech” branches (like CBS/CNET). They don’t say anything particularly special or insightful. In fact, the said truce is pretty secretive, so there’s not much that can be said with certainty. A blog post from someone who followed these battles closely for 8 years (Florian Müller) says/concludes with this: “Normally, those companies strike license deals, and when they wind up in court, they typically settle reasonably early. Somehow, it took them a lot longer in this case. And now either one of them has a dispute going that looks like it could become the next long-running one: Apple with Qualcomm, and Samsung with Huawei.”

“Only the lawyers gained from these cases (there was a string of them).”Just remember that Apple started this dispute and was the bully all along. Judge Koh made herself a name out of it. The media loves any case that says “Apple” on it. Müller added that “Judge Koh was quick and presumably overjoyous to grant the DISMISSAL sought by Apple and Samsung post-mediation: ORDER OF DISMISSAL. Signed by Judge Lucy H. Koh on 6/27/18.”

Koh has since then done other commendable things in her court.

For those wishing to read more details, try this article from Bloomberg:

The biggest patent battle of the modern technology world has finally come to an end after seven years.

Apple Inc. and Samsung Electronics Co. told a judge Wednesday they’d resolved the first filed but last remaining of the legal disputes that once spanned four continents. The string of lawsuits started in 2011 after Steve Jobs, Apple’s co-founder who died that year, threatened to go “thermonuclear” on rivals that used the Android operating system. The companies didn’t disclose the terms of the accord.

Only the lawyers gained from these cases (there was a string of them). Why did Samsung and Apple bother? Apple started this! It was an awful and now-notorious strategy of Steve Jobs, who even used words like “thermonuclear”. The supposed brilliance of this ‘genius’ was bad judgment and arrogance. The courts proved it.

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…

06.10.18

Do Know Evil? Then Stop Patenting Software, Google

Posted in Deception, Google at 9:55 pm by Dr. Roy Schestowitz

Google is patenting algorithms (sometimes not even its own)

Google patent

Summary: Complaints that Google is claiming credit for other people’s work and then patenting that, in effect ‘pulling an Edison’ to stockpile questionable patents while occasionally resorting to patent aggression

LAST year someone told us the story of how Google had used Alex Converse to patent someone else's work. This was particularly disturbing not just because of prior art but also because of patent scope.

“It would be bad if Google ever got granted any patent on anything related to asymmetric numeral systems (ANS) because it’s an algorithm.”Well, the originator of the method speaks out again. Jarek Duda was making some headlines last year and now he’s back. Rather than walk away and apologise Google seems to be doubling down on its bad practice, which involves patenting software:

When Jarek Duda invented an important new compression technique called asymmetric numeral systems (ANS) a few years ago, he wanted to make sure it would be available for anyone to use. So instead of seeking patents on the technique, he dedicated it to the public domain. Since 2014, Facebook, Apple, and Google have all created software based on Duda’s breakthrough.

But now Google is seeking a patent that would give it broad rights over the use of ANS for video compression. And Duda, a computer scientist at Jagiellonian University in Poland, isn’t happy about it.

Google denies that it’s trying to patent Duda’s work. A Google spokesperson told Ars that Duda came up with a theoretical concept that isn’t directly patentable, while Google’s lawyers are seeking to patent a specific application of that theory that reflects additional work by Google’s engineers.

How is that even patentable? The Google-hostile Mr. Gross said a few days ago, “guess which big co had NO trouble getting clearly Alice-ineligible applications rubberstamped at PTO while Director Lee was in charge? GOOGLE of course! this filing on 2 “modes” of AV operation would have been sh*tcanned by anyone else under 101 as “abstract idea”…” (image copied at the top)

“Generally speaking, especially in light of Alice, there’s no room for patents on algorithms in the patents repository.”Maintaining that conspiracy theory that Google is behind everything, these people would have us believe that Google enjoys special treatment. It would be bad if Google ever got granted any patent on anything related to asymmetric numeral systems (ANS) because it’s an algorithm. Generally speaking, especially in light of Alice, there’s no room for patents on algorithms in the patents repository. Do Know Evil, Google?

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