Much ado about [En]fish…
Summary: A roundup of news about software patents in the United States and why the media’s narrative (dominated by patent lawyers) clouds a rather grim reality for software patents, even after the Enfish v Microsoft case
THE USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.
SCOTUS and Halo v Pulse
“The USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.”Based on this new tweet, SCOTUS now recognises the patent trolls issue and even names it as such. This commentary on trolls ought to take into account the strong correlation between patent trolling and software patents (which trolls typically use). Here is what Patently-O wrote about SCOTUS just now: “The Supreme Court today issued an important unanimous decision in Halo v. Pulse – vacating the Federal Circuit’s rigid limits to enhanced damages in patent cases. The decision rejects the dual objective/subjective test of Seagate as “inconsistent” with the statutory language of 35 U.S.C. §284.”
The problem is, irrespective of damage limitations, patent trolls (which may be the spilling of a company’s patent portfolio acting as satellites) can just attack many thousands of firms or people, taxing each in turn. So loopholes remain in tact and overall it’s pretty ugly.
Court of Appeals for the Federal Circuit (CAFC)
It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC). Remember that it was CAFC which started software patenting in the first place and recently ruled in favour of Enfish, getting software patents proponents/maximalists (such as patent lawyers) all giddy and jubilant as though software patents are back with vengeance (they’re not).
“It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC).”Software patents are problematic to software developers, no matter if they develop Free software or proprietary software. It’s probably a bit more of a problem for Free software developers because in order to freely distribute copies of their software they must not be coerced into making patent payments to anyone. “Patents and the open-source community” is a new article from LWN which deals with the topic. It is a very long article about a panel in which Professor “Moglen advised separating the past from the future when discussing tactics. For the future, he said, “we should prevent people from getting patents.” But, in the past, the problem is old patents “rising up and smiting” projects, harming innovation. The work that Choudhary does trying to abolish patents, he said, covered how to protect people in the future—and he fully expects SFLC to continue that work, arguing in front of the Supreme Court about the “design patent” case between Apple and Samsung. Furthermore, he said, “open-source software is an immense repository of prior art. Free software can help by educating people on all that we’ve invented and that you therefore cannot reinvent and patent.””
Samsung and Apple
Speaking of this (above-mentioned) “design patent” case between Apple and Samsung — a case which we last wrote about in the weekend — Florian Müller who dislikes Moglen (he once again told off the SFLC a few days ago) has “all the documents and the key points”. To quote his blog: “There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one. Previous rounds of amicus curiae briefs already demonstrated broadbased support. But the level of support the petition has just received at this decisive stage exceeds my expectations.”
Days ago we explained why this is relevant and important to Free software. Previously we also explained why design patents are often similar if not indistinguishable from software patents (UI+callback function/s).
Patent Lawyers Upset
“There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one.”
–Florian MüllerSuffice to say, patent lawyers almost always support claimants (never mind justice or innovation). They want a lot of money to swap hands because it’s their source of revenue, other than/aside from obscenely high hourly charges. “How the United States Patent Office Became the Place Where Patents Go To Die” is an example of a new article which bemoans quality control and it is promoted by the usual suspects. It's not exactly surprising that the bubble is now imploding. Patent quality became a joke and over-evaluation of patents ensued. Opponents of the Alice decision continue to cheer for software patents (“Uber files patent on hyperlocal internet search” in this case), but sadly for them, the boat is leaving and software patents are now weaker (in the US) than they have ever been since their introduction by CAFC. “Recall that Enfish comes from a single CAFC panel,” IBM’s Manny Schecter wrote the other day, “when the CAFC ruled en banc in Alice it was splintered” (as a reminder, Schecter is a proponent of software patents not only in the US).
Reality Check From Software Patents Proponents
“I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections.”
–IP WatchdogWe were rather amused to find the most pro-software patents site out there publishing “Is Enfish Much Ado About Nothing?” The gist of it is that the Enfish decision hardly changed anything at all. To quote the key part: “I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections. The patents at stake in Enfish appear to have been written with a confident view of the prior art and of the invention. So, if a specification does not confidently emphasize the “invention,” its “benefits over” conventional prior art, and “disparage” the prior art, will examiners and judges continue Step 1 characterizations at “such a high level of abstraction”? Is Enfish merely much ado about nothing?”
Yes, it is. Patent lawyers tried to over-emphasise it in order to change public opinion and influence policy-making people. The patent salespeople, on the other hand (in the same site), hope that this one single case will save software patents, not just at the USPTO but also at the courts. They are not paying attention to any case other than the Enfish v Microsoft case. How convenient…
Software Patents Proponents in Denial
Almost a month later (after the decision) Baker Botts LLP is still cherry-picking cases in an effort — however shallow — to shore up software patents. Banana IP (Banana Republic?) does the same kind of lobbying. We have already covered dozens of examples like these. These helped show how the media, especially lawyers’ media, continues to simply ignore every single case that’s ruled against software patents and lean on the rare exceptions instead. Edward Bray (of Marks & Clerk) is now cross-posting his ‘analysis’ in favour of software patents — an ‘article’ (lobbying/marketing) which we mentioned the other day. It just never stops, does it? Even a month later.
“Is Enfish merely much ado about nothing?”
–IP WatchdogThe USPTO is doing the same thing, as we noted last month on a couple of occasions. Here is an explanation of how it goes: “Abstract idea – #USPTO memo on how the #CAFC Enfish patentability decision obstructed Alice http://www.uspto.gov/sites/default/files/documents/ieg-may-2016_enfish_memo.pdf … #swpat”
The patent office too is latching onto a single case when it serves to ‘sell’ more patents for more revenue. No separation between examination and policy?
Evidence serves to suggest that no matter what USPTO greed does, the courts continue to crush software patents, even after the Enfish decision. “Patents Directed to Electronic Delivery of Messages Found Ineligible in AZ in GoDaddy v. RPost,” Patent Buddy wrote the other day, linking to http://assets.law360news.com/0805000/805041/2016-06-07%20(doc%20344)%20order%20granting%20godaddy_s%20motion%20summary%20judgment%20and%20vacating%20trial%20dmwest_14483743(1).pdf (Alice is mentioned dozens of times in this decision’s PDF).
Many software patents have just died not only in the courts but also at PTAB, so how can patent lawyers argue with a straight face that a lot has changed? “Fatal Flaws of Subjective Alice/Mayo 101 Test [Are] Now Becoming Evident in Contradictory Findings Across Dist. Courts,” Patent Buddy wrote, but why is that test “subjective”? Because patent attorneys and lawyers don’t like it? Because it threatens their profit/income?
The matter of fact is that some courts get it right (they can see that algorithms are abstract), whereas some are still rather clueless (or bad lawyers for the defendant) if not corruptible, as was the case at CAFC before. Microsoft had a lot to gain from losing that case, as we explained last month.
“LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents.”Here is a case of software patents being used against Facebook, which has been stockpiling patents on software. To quote Patently-O: “Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database. Thus, applying this in LinkedIn, you might find that references to “Dennis Crouch” point to my LinkedIn profile. Of course, the way that Facebook & LinkedIn operate does not create the pointer-link for all occurrences of the term.”
LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents. What will this mean? Remember that the Enfish decision too involved Microsoft and people from Microsoft were pleased with the outcome. Speaking of Microsoft, the company is now hoarding software patents on quantum computing, based on this new listing. “Note that the USPTO also has a search engine for patent applications that are not yet granted,” wrote the author. “I am not listing those here. You can use that search engine yourself if you also want to see “Previews of the Coming Attractions”…”
Microsoft is by far the biggest threat to Free software when it comes to patent aggression.
Patents on Genome
“Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database.”
–Patently-OThe Alice/Mayo test applies to more than just software. Bristows lawyers (i.e. patent profiteers who promote software patents) show no concerns about patent scope expansions. Based on this article from MIP, they aren’t going to say that patents on human genome are insane. Instead there’s promotion of that. As per the summary: “Genomic technology has rapidly created a multi-billion dollar growth industry. With life sciences companies scrambling in US and European courts for a share of the lucrative market, in-house IP counsel should start preparing for the next wave of IP litigation, explain Dominic Adair and Annsley Merelle Ward” (from Bristows).
Unless the USPTO gets a grip and stops granting patents on everything in nature, the valuation of patents and the confidence in the patent office will further erode, leaving patent lawyers reliant on illusions, lying to their potential customers, and overselling the prospects of patent litigation. How long can this madness last? It’s a bubble. █
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EPO killing the appeals department, whereas the USPTO strengthens it
Summary: The Patent Trial and Appeal Board causes the patent microcosm to get all worried and vindicative, having come to the point of reviewing over 2,000 patents per year (expected to exceed 2,000 this year), i.e. almost a 10,000% growth since it all started
THE protests from patent lawyers against PTAB are rather revealing. They help demonstrate that PTAB is doing something right. IAM, which is funded by patent trolls and all sorts of patent parasites, tries to reinforce the discrediting/insulting label, “death squad”, in relation to PTAB. This isn’t the first time and now it’s right at the middle of the headline. Yes, “patent death squad” is what the patent propagandists are nowadays calling appeals, or specialised groups of scientists and/or judges who identify invalid patents, trashing these before they do enormous damage to small firms (or sole developers) which cannot afford legal defense.
“IAM, which is funded by patent trolls and all sorts of patent parasites, tries to reinforce the discrediting/insulting label, “death squad”, in relation to PTAB.”To quote IAM: “No patent owner likes to find itself subject to an inter partes review or covered business method patent procedure before the Patent Trial and Appeal Board at the USPTO. Not only do you end up spending good money to defend your position, but the statistics show that the chances are you will find at least some of your claims – if not the entire patent in question – being wiped out.”
How about the people who become victims of these patents, not the “patent owners” [sic]? One single patent can be used to attack, e.g. with extortion-like nastygrams dispatched in a warehouse/retail/wholesale fashion, literally thousands of small developers. It happens every year, but IAM does not care for them. They don’t fund IAM.
Looking at MIP, which is a lot more balanced than IAM, here are some information and numbers. “Managing IP rounds up interesting quotes, statistics, slides and tidbits from speakers at the US PTAB Forum 2016 in New York,” it claims, “which included panels on Patent Trial and Appeal Board rule changes, Federal Circuit appeals, district court strategies, pharma challenges and more” (quite an informative series).
“Watch how the number of petitions/appeals grew: 25 in 2012, 562 the following year, then 1489, 1897 last year and so far this year (just five months) 1053, which means it’ll go over 2000 this year, assuming the same pace persists.”Here is MIP showing the raw numbers. It’s sumamrised as “PTAB Monthly Data: Ford filed the most PTAB petitions in May, with Versata the most-targeted patent owner. Four PGR petitions were filed, a sign that this type of petition is gaining traction” (not just this type).
Watch how the number of petitions/appeals grew: 25 in 2012, 562 the following year, then 1489, 1897 last year and so far this year (just five months) 1053, which means it’ll go over 2000 this year, assuming the same pace persists.
“Whatever makes these greedy folks angry or puts them in a bit of a panic must be real impediment to software patents and various other abstract patents.”PTAB (or USPTO) needs to hire more and more people for this as there’s clearly high demand for the service. An experienced chief judge was recently added. While the EPO systematically crushes its quasi-equivalent of PTAB, sometimes by getting rid of people and not hiring replacements, the USPTO seems to gain/hire more such people. In other words, as the bubble inevitably bursts the USPTO regains some sanity (e.g. Alice test), whereas the EPO goes in the opposite direction, emulating neoliberal errors.
IP Hawk, a patents maximalist, bemoans the above. “CAFC crushed the PTAB,” he wrote, and “will likely issue a scathing Precedential opinion” (wishful thinking or lobbying). Here is another patents maximalist joining the echo chamber, quoting: “I don’t know what the Board thinks it’s doing” (or words to that effect).
Well, judging by those who are afraid of PTAB right now [1, 2, 3] we have some reassurance that it is doing the right thing. Whatever makes these greedy folks angry or puts them in a bit of a panic must be real impediment to software patents and various other abstract patents. █
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Summary: Both an Indian activist-lawyer and a widely-recognised author from the US explain to Indians why over-reliance on patents — and acceptance of patents on software in particular — is a very bad idea
Software patents refuse to die for good in India. We have seen for nearly a decade now how companies including Microsoft and IBM try to impose software patents on India, either directly or indirectly.
It should be obvious to Indians who would really benefit from software patents on India. For those who are not sure yet, a very good article from Mishi Choudhary (as usual) has just been posted in the Indian media (in English) and here are some portions of her argument:
If mathematics were patentable, there would be less mathematical innovation. Only those who are rich enough to pay royalties, or those who benefited from government subsidies, or those few who were willing to sign over the value of their ideas to someone richer and more powerful than themselves, would be permitted access to the world of mathematical ideas.
Theorems build upon theorems, and so the contributions of those who could not pay rent – and all the further improvements based upon those contributions – would be lost.
For more than a quarter century, beginning with a few stalwart thinkers and exponentially increasing in size and influence, a movement to build computer software by sharing – for software to be studied, improved, and shared again – has revolutionised the production of software around the world.
Free software operating systems now power everything from cellphones to home appliances to supercomputer clusters. There is no major or minor computer hardware architecture, no class of consumer electronics, no form of network hardware connecting humanity’s telephone calls, video streams, or anything else transpiring in the network of networks we call “the internet” that doesn’t include free software.
If you believe in innovation and not monopoly of ideas, join us in our battle against software patents. SFLC.in has been leading the efforts in India to protect the software industry and the start-up ecosystem from the dangerous implications of patenting software. Despite the government of India’s extremely clear stand on the issue; we are facing pressure from incumbent old software giants, multinational corporations and lawyers.
Software patenting is not in the Indian national economic interest. “Software”, as Bill Gates used to say, “is an IQ business”. When non-Indian firms can get software patents in India, the effect is to hobble the Indian IQ advantage. All we will get is floodgates of litigation and money to be made in exchange of lawyers’ time; no wonder we are facing resistance from other lawyers in our community.
As research reports on the subject show more than 90 per cent of software patents awarded in India, before the rectification imposed by the new guidelines, were issued to foreign corporates. Patenting software makes no more sense than patenting mathematics, which is why the Patent Act Section 3(k) says what it does.
The government of India should stick to its Digital India and Make in India agendas, which do not need the crutches of a broken patent system.
The following very good article from Mike Masnick (also well explained/argued, as usual) was published last night to remark on India’s (or the government of India’s) false perception about patenting, noting:
As India has been revamping its patent policy, there had been some serious concerns about broadening patent subject matter eligibility to include software and business methods. Earlier this year, however, the Indian Patent Office clarified that it would not allow patenting of just straight software patents. And that’s good.
But, it appears that that overall push to expand patents in India is still on a dangerous path, based mainly on some longstanding, but flat out incorrect, myths about patents and their impact on innovation. That link is to a story by Anubha Sinha, noting that it’s clear that the new plans are designed to benefit giant corporations at the expense of the public, in part by sticking to the myth that if patents are good for innovation, stronger patents must be better — ignoring that restricting the rights of the public has a real cost.
This is unfortunate — and it’s also a reason why I’ve argued we need to move away from calling them “limitations and exceptions” and towards what they actually are: the public’s rights. The intellectual property laws, themselves, are “limitations and exceptions” on the public’s right to use these things.
Unfortunately, when you don’t have much experience with these issues, and you just think that all patents are good and spur innovation, you miss out on how much damage to innovation and the public can be done with a patent regime that goes too far in restricting the public’s rights.
The other big myth is that “patents = innovation.” As we’ve noted for years, a rather unfortunate fact is that politicians (and, too often, academics) without a way to accurately “measure innovation” fall back on the easiest thing they can do: count patents. But the number of patents is not a proxy for innovation and in fact is quite misleading. But, because patents are countable, it becomes a metric that everyone keys off of. And we’ve covered how China, for one, has recently embraced a massive increase in patenting, proclaiming to the US that it’s no longer a “pirate nation.” But, of course, in the process, it’s turned into a giant patent troll, using those patents to punish foreign competitors. But the actual patents that China has been getting, even as the numbers go way up, have been mostly junk.
India now makes a lot of the world’s software, so if we can keep software patents out of India, developers everywhere would benefit. █
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Only an article or two about the decision against software patents and two dozen or so about a decision in their favour
Reference: Status quo bias
Summary: In an effort to protect software patents in the United States, where these patents came from in the first place (and continue to spread from), patent lawyers pretend not to see cases where software patents get invalidated and instead focus on the rare exception
The Supreme Court ruled against software patents two years ago. Things have changed thoroughly since then. Right now patent lawyers hope that another software patent/s case will reach the Supreme Court, which can potentially change course and reset the record (precedence).
“It doesn’t seem as though anything that can change Alice is on the horizon.”Patent maximalists (lawyers) watch closely as the Supreme Court picks up cases. To quote Professor Dennis Crouch’s overview (he keeps updated this kind of SCOTUS zeitgeist): “It is now time to begin looking for an opinion in the Halo/Stryker regarding whether the Federal Circuit’s test for willful infringement is too rigid. Those cases were argued in February 2016. We can also expect a decision in Cuozzo prior to the end June 2016.”
It doesn’t seem as though anything that can change Alice is on the horizon. This is good news. The Cuozzo case we have already mentioned here earlier this month and last month. It’s not going to change takeaways from Alice.
“They would rather ignore or hide it from the public/judges/clients.”According to this new post, Enfish v Microsoft [1, 2] is already forgotten as CAFC rules against software patent, quite frankly as usual. It’s only when it rules for software patents that there is typically a media frenzy, initiated by self-serving patent lawyers. To quote IP Kat: “The patentability of computer-implemented inventions has been in doubt in the United States since the U.S. Supreme Court decision Alice Corp. v. CLS Bank. However, the recent Enfish v. Microsoft case provided some hope to those who favor patentability of computer-implemented inventions. The Federal Circuit has issued another patent eligibility decision, TLI Communications v. AV Automotive, et al. Notably, both Enfish and TLI Communications are authored by Judge Hughes–and reach opposite results, but on different facts.”
We actually found out about this two days ago. Patent Buddy showed that CAFC got back to killing software patents when he wrote: “(1/2)The ’295 patent killed by the CAFC today w/101 has a priority date of 1996. Its a pioneer patent.”
Are they already fixing the Enfish v Microsoft error? After less than a week? As Patent Buddy put it: “Federal Circuit Held Image Manipulation Claims Ineligible under 101/Alice Today: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/15-1372.Opinion.5-12-2016.1.PDF”
“Such is the nature of media that is dominated by patent lawyers and their interest groups…”Will patent lawyers quiet down now that this decision is out? Or maybe not mention this newer decision at all? Were the celebrations short lived? So far we have found just one article about this decision (and we watch these things very closely). At the same time, in spite of this newer decision (against software patents), patent lawyers are evidently desperate enough to latch onto the older decision. They just wish to make software patents stay in the US. See for example what Michael D. Van Loy and Howard Wisnia from Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. have just published. Stinson Leonard Street LLP, likewise, cherry-picks the pro-software patents decisions, as usual. Gerard M. Donovan, Richard A. Graham, Amardeep (Sonny) Grewal and Marc S. Kaufman say that “Federal Circuit’s Enfish Is An Important 101 Decision” because it serves their agenda and it’s only a case like this which they are likely to cite in the future, not TLI Communications v. AV Automotive, et al.
MIP rightly called Enfish v Microsoft as it should. A “rare boost” is the way it got dubbed and MIP added: “The Federal Circuit has found software patents valid under Alice for only the second time, in Enfish v Microsoft.”
Compare that to the many times CAFC ruled against software patents, including the latest decision. Where were software patents lobbyists/proponents/boosters when these decisions happened? They would rather ignore or hide it from the public/judges/clients. Such is the nature of media that is dominated by patent lawyers and their interest groups… █
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The parasitic business of Davies Collison Cave not unsurprising (see below)
Summary: As the push against software patents grows in Australia, much to the chagrin of Australian software developers, Davies Collison Cave (patent law firm) publicly calls for opposition, calling its side “the truth” and pretending it represents “Australian innovators.”
EARLIER this month we saw the Australian Productivity Commission recommending the elimination of software patents [1, 2]. This was an important wake-up call not only to Australians but to governments all over the world, especially governments that write laws for the public interest, not for giant corporations (recall the Indian kerkuffle on this matter).
“This was an important wake-up call not only to Australians but to governments all over the world…”According to the financial (interests) media in Australia, the “WTO chief economist challenges Productivity Commission view on IP” because, as one must remember, WTO is a patents (or ‘IP’) maximalist. Remember who WTO truly represents. It’s like those same interest groups that are pushing for TPP, TTIP and their south-Pacific equivalents/complements.
The European Commission, facing the likes of the Productivity Commission, is now pressured “to ban patents on seeds”, which are still being granted at the EPO. “Tomorrow,” said an announcement, “a symposium on patents and plant breeders’ rights will be hosted by the Dutch Minister for Agriculture.”
Well, it makes sense to do so. Who benefits from patents on seeds? We covered this subject before.
“It’s like those same interest groups that are pushing for TPP, TTIP and their south-Pacific equivalents/complements.”Either way, patent scope boundaries are imperative. Without them, all we have is another USPTO and SIPO (China’s). They are both notorious for low patent quality.
The other day, writing in patent lawyers’ media, Spruson & Ferguson wrote about the Australian Productivity Commission report as follows:
Reforming the patentability of business methods and software inventions
Business methods have been defined as a method of operating any aspect of an economic enterprise, including ‘trading, transacting, finance, resource management, marketing and customer service’16. The Commission found that Business Methods and Software patents reward low– (or even no–) value innovations, and therefore, on balance, it is unlikely that granting patents in the area of Business Methods and Software increases the welfare of the community. While recommendations with regards to changes to the inventive step threshold for standard patents, and dispensing with innovation patents, may ‘knock out’ a large share of Business Methods and Software inventions, the Commission still considers that there is value in making clear that Business Methods and Software should not be considered patentable subject matters.17
Draft Recommendation 8.1 suggests that the Australian patent system should exclude Business Methods and Software from patent protection, as was done in a number of other countries.18 More particularly, it is recommended that section 18 of the Patents Act 1990 (Cth) be amended to explicitly exclude Business Methods and Software from being patentable subject matter. According to the Commission, amending the Patents Act 1990 (Cth) as recommended would minimise the ongoing legal uncertainty, and bring Australia into alignment with the approaches taken in other jurisdictions without impinging on international obligations.
A contrasting view is that, even if there is no case for patenting Business Methods and Software, it is not necessary to explicitly exclude Business Methods and Software from being patentable subject matter. The patentability of Business Methods and Software in Australia has already drastically been restricted by the courts, for example by the Commissioner of Patents v RPL Central Pty Ltd  FCAFC 177 decision, by qualifying what constitutes a manner of manufacture within the meaning of section 6 of the Statute of Monopolies (i.e. section 18(1)(a)). Presently, business system inventions that are not within a ‘field of technology’ are not patentable. Accordingly, since that decision Business Methods and Software inventions generally do not meet the “manner of manufacture” criteria of patentability.
Not too long afterwards, the same lawyers’ site published this selfish, self-promotional call for opposition to the Commission’s findings, specifically calling for written support for software patents in Australia. Shame on Davies Collison Cave for lobbying for software patents in spite of Australian developers unequivocally rejecting and detesting them (we covered this some years back). To quote:
If patents for software are important to your business, then this message is also important for you.
The Productivity Commission has released a draft report which it intends to make final. It includes a recommendation that the Australian Patents Act be amended to explicitly exclude software from being patentable.
The Commission believes that software patents do not encourage new, valuable innovation. We suggest you tell them the truth.
Written submissions in reply to the draft can be made here by 3 June 2016.
It is time our Government heard from Australian innovators.
Yes, that’s right. They are “the truth.” And they are also “Australian innovators.” Like Microsoft front groups represent SMEs… █
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Time to give Battistelli the sack
Summary: An informal but timely progress report shows that Battistelli has made no progress whatsoever and all the injustices remain in tact, in spite of the warnings from the Administrative Council (mid March)
WE already wrote about Battistelli's failure to appease the Administrative Council two weeks after he was warned. Well, two months have just passed and Battistelli is as evil and crooked as ever. In fact, his attacks on staff representatives apparently stretch far beyond just the EPO (well after dismissal). Battistelli has nothing whatsoever to redeem himself; nothing was done to repair the damage because a weak SUEPO is what Battistelli wants.
“Battistelli has nothing whatsoever to redeem himself; nothing was done to repair the damage because a weak SUEPO is what Battistelli wants.”“For example,” says this new comment, “a recently dismissed member of the staff representation is seeking work as a patent attorney. The President will be able to prohibit that for two years, without compensation.”
This does not surprise us as we mentioned this before although we didn’t know staff representatives too were affected. It’s one prominent example of divergence from international labour protections. “Merpel catches up with developments at the EPO,” IP Kat has just said, “in the Boards of Appeal, employee dissatisfaction and sanctions, and more…”
“Nothing at all was resolved.”Well, remember that in spite of the rules, which are written very clearly, Battistelli suspended a high-level member of a Board of Appeal. Where is justice when it comes to him? In fact, it increasingly looks like Battistelli defamed a judge and might be sued for it. Battistelli was all along just a tyrant, as were his minions in management who relentlessly attacked staff representatives. He has done anything he could to demonise his exposers at the EPO (even outside the EPO) and some believe that the Boards of Appeal are next in the firing line. To quote what Fritz wrote: “These very staff regulations, including the investigation guidelines, have been seen a pen accepted by the AC. Si who is toto blame? The same will happen with the regulations for the BoA.”
Here are some remarks about the impact on SUEPO, in light of the PDF response to the regulations/guidelines for investigations (as HTML):
“All or nothing strategy” is the the best description I’ve heard so far about what is going on at the EPO.
Despite the clear instruction to come to an agreement with both unions, we have heard nothing about an initiative to even begin a conversation with SUEPO. They are still waiting for a response to their proposal of a agreement made a long time ago. My prediction is that the AC members will be told in June that SUEPO, to the great regret of management, simply refused to talk and nothing could be done.
Dear AC members, if you want the truth, SUEPO’s willingness to talk with you will without a doubt have few bounds.
The AC requested the EPOffice President:
¨to ensure that disciplinary sanctions and proceedings are not only fair but also seen to be so, and to consider the possibility of involvement of an external reviewer or of arbitration or mediation¨.
The disciplinary sanctions and proceedings were and still are unfair and in conflict with fundamental human rights.Battistelli never will accept a neutral external reviewer or arbitration/mediation because he fears the truth and loses his face. Battistelli only could accept a reviewer/mediator he can choose and have influence on.
The AC requested further: ¨pending the outcome of this process and before further decisions in disciplinary cases are taken, to inform the AC in appropriate detail and make proposals that enhance confidence in fair and reasonable proceedings and sanctions¨ and ¨to submit to the AC a draft revision of the Staff Regulations which incorporates investigation guidelines (including the investigation unit) and disciplinary procedures which have been reviewed and amended¨
Also here happened NOTHING. I am afraid that in the view of Battistelli and his clan the Staff Regulations are okee and not in conflict with fundamental human rights. For him it is not necessary to react to the proposal of the SUEPO because the SUEPO has a total different and unacceptable view of how the Staff Regulations should be. Moreover Battistelli and his team do not want to loose their faces. Faces they have already lost a long time ago.
Just because Battistelli keeps a low profile, as he was instructed to do (apparently but not certainly by the damage control experts) ,does not mean anything was resolved. Nothing at all was resolved. Battistelli called off the (probably illegal) pension cuts affecting one staff representative, but that’s purely it. He failed at everything. It’s time for him to go next month. Maybe some protests or a strike coinciding with the Administrative Council’s meeting will help get across such an uncontroversial message. █
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And the microcosm of patents lawyers helps CAFC by selective coverage and accompanying hype that is hardly justified
Summary: The highly biased Court of Appeals for the Federal Circuit (CAFC) rules in favour of a software patent, so the crowd of patent lawyers (or their sites) goes wild and makes it seem like an Earth-shattering development that suddenly makes software patents very eligible in spite of Alice/§ 101
CONCERNS about the EPO‘s rogue management and the EPO scandals are globally justified as these matters impact not only Europe. And it’s not just because the EPO is not a European body (it’s international/globalist) but because it inspires moves in other countries/continents, where labour rights gradually get abolished/eroded and patents get expanded in terms of scope, number, injunctions, damages, and so on.
“New USPTO Patent-Eligibility Guidance Not So New,” according to this pro-patents site. Lawyers’ sites which comment on USPTO guidelines would rather have us believe nothing has changed. This one says that “this memorandum simply lays out the by now well-known two-part Alice/Mayo test, spells out explanations that examiners are supposed to give when making Section 101 rejections, and provides examiners with responses to arguments that applicants may make. Applicants may find this guidance useful in pressing examiners for better explanation of rejections based on allegedly unpatentable subject matter. However, I suspect applicants will continue to be frustrated by the seemingly subjective, and undeniably unpredictable, nature of many rejections under 35 U.S.C. § 101.”
“The USPTO does not care what the Supreme Court says.”Will this patent office stop issuing software patents at long last? We doubt it. The USPTO does not care what the Supreme Court says. It’s pretty much the same at the EPO, where the EPC is repeatedly ignored (on multiple levels).
EPC rules are being ignored/crushed by Battistelli with his lousy leadership (while he makes up the EPO rules/guidelines with zero oversight) and in the mean time we learn that: “The CAFC in Enfish v Microsoft employed the EPO technical test to define what, if anything, was abstract.”
Worth noting, as we have indicated before, is the gross deception (by omission) from lawyers’ sites. When decisions are made against software patents in the US the lawyers’ blogs and sites are mostly quiet; but they’re all in hype and joy otherwise, amplifying the news. This is why the lawyers’ sites were all over this case a few days ago [1, 2, 3, 4, 5, 6, 7, 8, 9], with headlines like “Federal Circuit Clearly Says Software Can Be Patentable” and summaries such as this: “A Federal Circuit panel (Judges Moore, Taranto, and Hughes) has unambiguously stated that some — one might even say much — software is patent-eligible, reversing findings of invalidity under 35 U.S.C. § 101 for two patents “directed to an innovative logical model for a computer database.” Enfish, LLC v. Microsoft Corp., No. 2015-1244 (Fed. Cir. May 12, 2016) (opinion by Judge Hughes). In addition to reversing a summary judgment of Section 101 invalidity, the court vacated a summary judgment of invalidity under 35 U.S.C. § 102, and left intact a summary judgment of non-infringement. But the reason why this case will be a big deal is the holding — and analysis — pertaining to the patent-eligibility of software inventions.”
“Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents.”“The EPO tech feature test is 40 years old,” one person wrote. “Why didn’t CAFC use it before and avoid all this jurisprudential bullshit?”
As Benjamin Henrion put it, “because the EPO test is garbage.”
Another opponent of software patents asked, “US Court now using EU rules?”
A later question was, “so they just take rules from other Countries when they decide to?”
“The GAO Report has already cited the role of Software Patents in the problem,” it was added, “FTC Report will probably say the same” (the patent maximalists slam it before it’s even released).
“In her Dissent in Bilski,” said one patent attorney, “J. Moore said that the abstract test would swallow circuit court decisions. It did. Hence, Enfish Today.” Another tweet said: “Enfish v Microsoft et al.–Only 1 of 2 Fed Cir Decisions Holding Software Eligible under 101; Held Software Not Inherently Abstract”
“Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news.”Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents. To quote: [1, 2] “Some much-needed sanity in #patent law: Fed Cir says today in Enfish v. Microsoft that #software NOT automatically “abstract” under 101 test [...] unfortunately, Alice left much to interpretation by courts & PTO, who took it as anti-software patent mandate” (still slamming the Supreme Court because, once again, CAFC is trying to promote software patents, which it made up or introduced in the first place).
Here is a press release about the case. Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news. This is their time to deceive, mislead, and engage in shameless self-promotion/marketing. IAM wrote: “Since the Supreme Court handed down its decision in Alice, many in the patent market have been searching for a case that provides some greater clarity on the Justices’ thinking or, at the very least, doesn’t simply see the Court of Appeals for the Federal Circuit (CAFC) affirm a lower court ruling and invalidate the patent in question. Those cases have been few and far between but the market took some encouragement this week from the CAFC’s decision in Enfish LLC v Microsoft, when the majority ruling explicitly stated that Alice did not simply eliminate broad swathes of software from patent eligibility.”
“So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded.”Here is what Gene Quinn’s site and IP Kat wrote. So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded.
National Law Review went with the headline “CAFC Finds Software Patent Eligible Under 35 U.S.C. §101″ and Andrew Chung from Reuters said “Federal Circuit revives patent, expands software eligibility”.
Software-related patents will survive challenges to their validity despite a U.S. Supreme Court precedent that has led to the widespread cancellation of patents, if they improve the way computers operate, a federal appeals court ruled on Thursday.
In a dispute involving Enfish LLC and Microsoft Corp, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit revived two Enfish patents on an advanced database, agreeing with the company’s Cooley attorneys that the technology improves the functioning of a computer and thus deserved to be patented.
As Microsoft lobbies so hard for software patents, losing this case is possibly good news to Microsoft. One might argue that they’re winning by losing here. This case isn’t about patent trolls but about patent scope and the former “patent reform is minimal,” Benjamin Henrion reminds people, “real reform involves discussing patents for software.”
“Why did it rely on the EPO? It seems totally improper a thing to do.”Right now there’s just one case that shows digression (moving in the opposite direction) as “patent courts are always biased.” (especially true in the case of CAFC, which is full of well-documented corruption)
“In a rare win for a software patentee,” Patently-O wrote, “the Federal Circuit has rejected a lower court ruling that Enfish’s “self-referential” database software and data-structure invention is ineligible under 35 U.S.C. § 101 as effectively an abstract idea.”
Why did it rely on the EPO? It seems totally improper a thing to do.
In other cases — not the type of cases that patent lawyers want the public to know about, § 101 kills patents because it’s about an “electronic device to obtain clinical trial data that would otherwise be collected by pen-and-paper diary” (to quote the decision, not the Docket Report):
The court granted defendant’s motion to dismiss because the asserted claims of plaintiff’s clinical drug trial patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.
Another § 101 article from the Docket Report says “Popularity of § 101 Motions Weighs Against Certification for Interlocutory Appeal”. To quote: “The court denied defendant’s motion to certify for interlocutory appeal an earlier order denying defendant’s motion to dismiss for lack of patentable subject matter because, although there was a controlling question of law that would materially advance the litigation, the court exercised its discretion not to grant appeal given the popularity of 35 U.S.C. § 101 motions.”
The bottom line is this: Most decisions which involve § 101 wind up eliminating software patents. But reading the patent lawyers-dominated media (or their own ‘news’ sites) one might give the opposite impression. █
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Article as ODF
Publicado en America, Courtroom, Law, Patentes a las 6:46 am por el Dr. Roy Schestowitz
Las Cortes de los EE.UU continúan rechazándo patentes de software, pero a la USPTO no le importa y continúa emitiéndolas de todas maneras
“LinuxFest Northwest 2016: Las Patentes de Software después de Alice: Una larga y triste cola” [via Montana Linux, que dice “Deb Nicholson habló acerca del estado de las patentes de software en los EE.UU después del veredicto de la Corte Suprema en el caso clave Alice vs. CLS Bank case.”]
Sumario: La “línea de producción”, que la USPTO ha degenerado a (limitarse a aceptar casi todo lo que entra) pasándo los costes de los procesos espurios al público (externalidad para ser gravados por los monopolistas, trolles, y los abogados de patentes) y la nueva información sirve para destacar esta gran injusticia que está motivado por la codicia y el control corporativo de la USPTO (cautiverio a manos del proveédor)
El Profesor Dennis Crouch, todavía se mantiene al corriente de los “casos pendiéntes de patentes en la Corte Suprema” (hay casos de patentes interesantes a nivel de SCOTUS en el camino), trayéndo actualizaciones sobre las adaptaciones de la USPTO a resoluciones como Alice, que básicamente trajó el fin a una gran cantidad de patentes de software (la USPTO debería obedecer los fallos judiciales y terminar las patentes de software, pero es demasiado codiciosa para hacerlo). Los artículos constituidos por Dennis Crouch son en realidad muy informativos ya que nos ayudan a rastrear cómo las cosas están cambiando (la obra del Profesor Crouch es académica/científica, por lo que no tiene mucho que ganar personalmente del maximalismo de patentes). Al escribir sobre lo último en el caso de Fitbit, un sitio de abogados de patentes dice: “Como una actualización de nuestros 13 de abril de, el año 2016 entrada del blog, la Comisión de Comercio Internacional de Estados Unidos juez administrativo (ALJ) Dee Lord ha concedido la determinación de resumen que las pretensiones formuladas de dos de las patentes restantes de la quijada en su acción contra el artículo 337 de Fitbit se dirigen a la materia inelegible bajo 35 USC § 101.”
“No es díficil ver el porqué de que las grandes corporaciónes estén en armas.”
Este es básicamente el último legado de alto perfil de Alice, que la USPTO (a diferencia de los tribunales, incluido SCOTUS) todavía está tratando de ignorar. La USPTO sigue teniendo discusiones sobre el tema. De acuerdo con un nuevo fragmento de texto encontrado por Benjamin Henrion hace unos días, la USPTO dice “Funciones que no son funciones computadora genéricas, por tanto, no son significativamente más que una idea” (PDF en el mismo).
¿Intentará la USPTO obedecer los decretos de la corte? ¿O es tán reacia/pícara a aceptar que las cosas han cambiado? Su antiguo director, el néfasto David Kappos, actual Delfin de la Sagrada Familia de Patentes (IBM, Microsoft, Apple, HP entre otros) está actualmente cabildeándo contra la Corte Suprema a favor de sus amos – un movimiénto que contribuye a la percepción de corrupci ón en el sistema en su totalidad.
“Otro nuevo análisis del Profesor Crouch refuérza la idea de que la oficina de patentes debería enforzar las fronteras de las patentes, y restr íngir su esfera.”
No es díficil ver el porqué de que las grandes corporaciónes estén en armas. Dennis Crouch, el académico pro-patentes, ha hecho algunas cartas de investigación y gráficos que muestran que el porque el sistema de patentes fue creado por no lo es más. El análisis de Crouch ha demostrando cómo las grandes empresas obtienen la mayor parte de las patentes (primer autor más jefes, etc y las personas que quieran obtener parte del crédito), no los desarrolladores independientes (lo mismo en Europa) y añade la siguiente interpretación de los números/gráficos:
El objetivo principal del sistema de patentes es fomentar la innovación – “. Promover el progreso de la ciencia y las artes útiles” Para mí, la naturaleza de la paternidad de la invención es una actividad fascinante: ¿cuáles son los factores que llevan a la invención y cuáles son los resultados de la invención ?
Un cambio importante en los últimos decenios en términos de los inventores que figuran en las patentes de EE.UU. es el aumento de la calidad de inventor en equipo. En 1975, la gran mayoría de las patentes de Estados Unidos se emitieron a un único inventor. Desde entonces, ha habido una tendencia constante hacia más inventores-por-patente. Alrededor de 1990, llegamos a un punto en el que, por primera vez, más de la mitad de las patentes de EE.UU. que aparecen múltiples inventores. Esa tendencia hacia más inventores por patentes continúa en la actualidad.
La perforación hacia abajo, el aumento se observa en las patentes con tres o más inventores. La siguiente tabla muestra el porcentaje de patentes de utilidad, ya sea con un inventor que aparece (pendiente negativa doble línea) o tres inventores que figuran + (pendiente ascendente línea). La caída en el primero se correlaciona casi exactamente con el aumento en el segundo. A lo largo de este tiempo, el porcentaje de las patentes de dos inventor se ha mantenido estable en torno al 25%.
Otro nuevo análisis del Profesor Crouch refuérza la idea de que la oficina de patentes debería enforzar las fronteras de las patentes, y restr íngir su esfera. Sin embargo, su enfoque, sin embargo, es el número de demandas por patentes, que muestra un descenso muy pronunciado el los últimos diez años (las barreras de patentes tal vez caendemasiado bajo, lo que permite prácticamente todas las aplicaciones de patentes sean aceptadas, o más del 90% de ellos). Él llama a esto “Patentes de Tamaño Adecuado“, y añade:
Muchas de las políticas progresistas se centran en la reducción de las disparidades (ingreso, la riqueza, la educación, y oportunidades) que reflejan alguna injusticia social entre los de arriba y los de abajo de nuestro espectro social. Los conservadores suelen reconocer los vacíos, pero no están de acuerdo acerca de si el resultado se califica como la injusticia, así como sobre el papel del gobierno en la redistribución.
política de patentes a menudo es más fácil de implementar que la política social (sobre todo en comparación con otros cambios en la ley de propiedad), ya que una nueva generación de patentes emerge cada veinte años y la vieja generación no se cuelga-en torno a la protección y la dirección de la riqueza, sino que se funde con el destino nos alcance de la dominio público.
En algunos aspectos, sin embargo, las patentes están revirtiendo la tendencia social y paso a una uniformidad y menos diversa – al menos por algunas mediciones externas tales como el tamaño del documento, las reclamaciones por patentes, y esté pendiente de persecución.
Para reformular la última frase (arriba), las patentes están revirtiendo la tendencia corporativa y convirtiéndose de baja calidad y más triviales. Esto significa que aquellos que son pobres serán más pobres y los que son ricos y poderosos tendrá más municiones para marginar a los chicos pequeños (o chicas). Cada vez más chicos pequeños (o chicas) estarán bajo más amenazas de más patentes en manos de las grandes corporaciones. Esto significa que pierden el control; que están siendo dominados. Las patentes falsas que son posibles para invalidar en un tribunal son demasiado caras para invalidar, ya todos aquellos que están en contra se enfrentan a enormes daños que no pueden justificar las facturas legales (por lo que se asientan el caso o quiebran). ¿Para esto se creó el sistema de patentes? Seguramente fué lo contrario. Lo más triste es que la EPO también se está convirtiendo poco a poco en lo mismo gracias a Battistelli, sus chácales y políticos corruptos.
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