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12.02.18

35 U.S.C. § 101 Continues to Crush Software Patents and Even Microsoft Joins ‘the Fun’

Posted in America, Courtroom, Microsoft, OIN, Patents at 4:32 pm by Dr. Roy Schestowitz

Software patents are truly a threat to Free/Open Source software

“Steve Jobs threatened to sue me, too. [and also] Bill Gates and Steve Ballmer. They’d flown in over a weekend to meet with Scott McNealy. [...] Bill skipped the small talk, and went straight to the point, “Microsoft owns the office productivity market, and our patents read all over OpenOffice.” [...] Bill was delivering a slightly more sophisticated variant of the threat Steve had made, but he had a different solution in mind. “We’re happy to get you under license.” That was code for “We’ll go away if you pay us a royalty for every download” – the digital version of a protection racket.”

Jonathan I. Schwartz, Sun

Summary: The Court of Appeals for the Federal Circuit (CAFC) and even courts below it continue to throw out software patents or send them back to PTAB and lower courts; there is virtually nothing for patent maximalists to celebrate any longer

AS promised earlier today, here’s a quick outline of the smashing of software patents, erroneously granted by the U.S. Patent and Trademark Office (USPTO) only to be squashed in district (lower) courts, the higher court (Federal Circuit, CAFC) and the Patent Trial and Appeal Board (PTAB), where inter partes reviews (IPRs) are undertaken.

As usual, it’s hard to find even a single example of a software patent withstanding scrutiny at a higher court (CAFC or SCOTUS). Those are rare exceptions — ones that patent extremists would tout for many months if not years.

“An appeal would likely have this decision overturned because of the district’s notoriety.”Looking at the blog dedicated to advocacy of software patents (it’s a law firm’s blog), Mark St. Amour looks downwards to the notorious Eastern District of Texas for examples — however rare — of software patents finding feet (until CAFC throws them out if defendants can afford justice). He found this: “In IDB Ventures, LLC v. Charlotte Russe Holdings, Inc. (2:17-CV-660-WCB-RSP), the Eastern District of Texas highlighted the effectiveness of showing that a patent claim is directed to a specific improvement to computer functionally for overcoming a challenge based on 35 U.S.C. § 101.”

An appeal would likely have this decision overturned because of the district’s notoriety. Charles Bieneman, a colleague of Amour apparently, meanwhile admits that gifting (or a gift certificate) is not an “invention” just because you do it “on a computer” or “over the Internet”; why does the USPTO grant such laughable software patents in the first place?

To quote Bieneman (this is in Delaware, not Texas):

Patent claims directed to electronic gift certificates are not patent-eligible under 35 U.S.C. § 101 and the Alice/Mayo test, according to a US magistrate judge’s recommendation to grant a Rule 12(b)(6) motion to dismiss. Coqui Technologies, LLC v. Gyft, Inc., No. 17-777-CFC-SRF (D. Del. Nov. 16, 2018). The court found that claims of U.S. Patent No. 7,580,864, entitled “Method for circulating an electronic gift certificate in online and offline system,” were “directed to the abstract idea of selling, gifting, and using electronic gift certificates” without an additional inventive concept.

Another new pick/highlight comes from the District in California, which finds software patents pertaining to “User Interface Features Not Patent-Eligible,” according to Mike McCandlish. Thanks to 35 U.S.C. § 101, as usual…

Finding a lack of technical innovation, a court held claims for three features for a user-vehicle interface to be directed to patent-ineligible abstract ideas under the Mayo/Alice test and 35 U.S.C. § 101. Thunder Power New Energy Vehicle Development Co. Ltd. v. Byton North America Corp., No. 18-cv-03115-JST (N.D. Ca., Oct. 31, 2018).

Plaintiff, Thunder Power, alleged infringement by Defendant Byton of claims of Patent Nos. 9,547,373, 9,563,329, and 9,561,724. Byton moved to dismiss, contending that the asserted claims failed to recite patent-eligible subject matter under 35 U.S.C. § 101. The court granted the motion to dismiss.

Did Watchtroll find anything new that it can trumpet and shout about? No, not really. It returned to a month-old case, Ancora Techs. v. HTC Am., Inc.

The firm behind the outcome is still celebrating in paid articles and seeing how Watchtroll is still falling back on the HTC case (old news that it covered several times before) is rather revealing. There has been nothing for them to brag about for a very long time. “The Federal Circuit,” they said, “recently [sic] reversed the Western District of Washington’s grant of a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure where the district court held that the claimed subject matter was ineligible for patenting under 35 U.S.C. § 101.”

“Did Watchtroll find anything new that it can trumpet and shout about? No, not really.”They say “recently” about something roughly a month old. They find it noteworthy because it’s a CAFC case, but Watchtroll is begrudgingly coming to accept that the high court, CAFC, is even stricter than PTAB when it comes to software patents as software patents almost always come there just to be thrown away. As Steve Brachmann put it a few days ago, “Federal Circuit Vacates PTAB Decision That Video Messaging Patent Claims Were Nonobvious” (most patent maximalists just tried to ignore it as it doesn’t suit their agenda).

Funnily enough, Rachel Elsby, Rubén Muñoz and Dorian Ojemen (Akin Gump Strauss Hauer & Feld LLP) would have us believe that CAFC gives or offers “tips” but that’s actually shameless self-promotion from them. We spotted this earlier today and our only comment is amusement. “On Wednesday, November 14th,” they argued, “the Court of Appeals for the Federal Circuit issued a nonprecedential decision in WhatsApp, Inc. v. TriPlay, Inc., which vacated a final written decision terminating an inter partes review (IPR) proceeding and remanded the case back to the Patent Trial and Appeal Board (PTAB).”

Wow. So basically it’s back to PTAB. What a ‘victory’…

CAFC very much insists that software patents are bunk and void. Here’s a new example titled “Fed. Circ. Won’t Reconsider Nixing Robotics IP Under Alice” (Section 101 basically).

“CAFC very much insists that software patents are bunk and void.”“The Federal Circuit has refused to reconsider its September ruling that parts of four robotics patents asserted against Invensys Systems Inc. and other automation companies are invalid,” Law360′s Matthew Bultman wrote. His colleague Tiffany Hu wrote that “Microsoft scored a win Tuesday when the Patent Trial and Appeal Board invalidated a technology company’s patent covering a way to attach conversation point reminders for mobile contacts…”

When Microsoft doesn’t blackmail the competition using software patents it is trying to invalidate others’. Precious.

Speaking of Microsoft’s patents, OIN has just recalled Microsoft’s history when it comes to such patents and the Irish media covered it as follows some days ago:

“OIN was conceptualized about 15 years ago largely in response to some activities that Microsoft was involved in. Microsoft funded litigation by a company called SCO against Red Hat, IBM and Suse. While these three companies were sued for violations of copyrights, the litigation triggered a concern around broader IP risks.

There was a belief that patents could be used to slow or stall the progress of Linux. The rhetoric from Balmer and Gates historically had been very negative about Linux being a ‘cancer’ and that it would be eradicated. It was for hobbyists. It would never be used for mission-critical applications. It wouldn’t scale. All the things ironically that IBM said against personal computing 20/25 years before. It was eerily similar. It’s what happens when you control the market and can’t make sense of what you see so you retreat to fear, you retrench to control.”

Reuters’ Jan Wolfe, who routinely covers patent matters, took note of another defeat for notorious patents. CAFC has gutted fake patents of a patent troll from Canada (WiLAN). To quote:

A federal appeals court on Wednesday said it would not reconsider an earlier decision that likely doomed patent litigation cases the licensing firm WiLAN Inc brought against industrial automation companies Rockwell Automation Inc, Schneider Electric SE and the Emerson Electric Company.

Joe Mullin (EFF) has meanwhile named and shamed some more fake patents granted by the USPTO even though software patents are bogus, worthless, and harm society, science etc. This is the latest “Stupid Patent of the Month”:

In some fields, software bugs are more than the proverbial pain in the neck. When software has to ensure that an airplane lands safely, or that a pacemaker keeps operating, there’s no room for error.

The idea that mathematical proofs could be used to prove that software is error-free has been around since the 1970s, and is known as “formal verification.” But like a lot of technologies that some visionaries saw coming, it took time to develop. In recent years, computing power has become cheap enough for formal verification to become practical for more software applications.

Unfortunately, last month, the field had a monkey wrench thrown into it, in the form of U.S. Patent No. 10,109,010, which the patent office awarded to a U.K.-based company called Aesthetic Integration Ltd.

Claim 1 of the patent describes creating mathematical “axioms”—formal mathematical statements—that describe a computerized trading forum. The patented method then describes analyzing, with a “computer assessment system … the mathematical axioms that describe the operation of the trading forum.” In other words, the patent describes using formal proofs to check for bugs in a “computerized trading forum.” It’s formal verification—just applied to the financial services industry.

Of course, Aesthetic Integration didn’t invent formal verification, nor did the company invent the idea of software powering a “trading forum.” The company has apparently created software that utilizes formal verification in the financial services space, and that software might be perfectly good. But the Patent Office has effectively allowed the company to patent a whole sector of formal verification.

[...]

Ultimately, the ’010 patent reflects a broader problem with Patent Office’s failure to apply a meaningful obviousness standard to software patent applications. We have explained before that the Patent Office is all too willing to hand out patents for using known techniques in a particular field. Flow charts and whirligigs can make a concept look new when it isn’t—especially when a patent owner fills its application with obscure language and “patentese.” The Federal Circuit has also encouraged this through its hyper-formalistic approach to obviousness. The end result is an arms race where people rush to patent routine software development.

Perhaps one day the USPTO will stop issuing such patents. Patent quality is very important, more so than revenue of the Office.

“In a better world there would be far fewer patents, albeit ones that are strong, solid, and defensible based on public interest and scientific merit (as opposed to law firms’ and Office revenue).”Michael Risch has just cited this relatively new paper from Christopher Anthony Cotropia (University of Richmond’s School of Law) and David L. Schwartz (Northwestern University’s Pritzker School of Law), introducing it as “Patents Used in Patent Office Rejections as Indicators of Value” and remarking:

The quest for an objective measure of patent quality continues. Scholars have attempted many, many ways to calculate such value, including citations, maintenance fee payments, number of claims, length of claims, and so forth. As each new data source has become available, more creative ways of measuring value have been developed (and old ways of measuring value have been validated/questioned).

From the abstract of the corresponding paper:

The economic literature emphasizes the importance of patent citations, particularly forward citations, as an indicator of a cited patent’s value. Studies have refined which forward citations are better indicators of value, focusing on examiner citations for example. We test a metric that arguably is closer tied to private value—the substantive use of a patent by an examiner in a patent office rejection of another pending patent application. This paper assesses how patents used in 102 and 103 rejections relate to common measures of private value—specifically patent renewal, the assertion of a patent in litigation, and the number of patent claims. We examine rejection data from U.S. patent applications pending from 2008 to 2017 and then link value data to rejection citations to patents issued from 1999 to 2007. Our findings show that rejection patents are independently, positively correlated with many of the value measurements above and beyond forward citations and examiner citations.

It is interesting that they study Section 102 and 103 rejections (prior art and obviousness) but not Section 101 rejections — the subject recently explored by Colleen Chien and Jiun Ying Wu based on a lot of data. In a better world there would be far fewer patents, albeit ones that are strong, solid, and defensible based on public interest and scientific merit (as opposed to law firms’ and Office revenue).

The Anti-Section 101 (Pro-Software Patents) Lobby Looks at New Angles for Watering Down Guidelines and Caselaw

Posted in America, Law, Microsoft, Patents at 3:10 pm by Dr. Roy Schestowitz

Section 101 (35 U.S.C. § 101) withstands endless lobbying against it

Section

Summary: By focusing on jury trials and patent trolls the proponents of bunk, likely-invalid abstract patents hope to overrule or override technical courts such as the Patent Trial and Appeal Board (PTAB)

IT SHOULD NOT surprise anyone that USPTO officials who came from the litigation ‘industry’ are upset at the Federal Circuit under Chief Judge Sharon Prost. As we shall show in later posts, she too has come under criticism if not attacks from the usual suspects. For those who forgot or haven’t been following these affairs, Sharon Prost replaces a corrupt Chief Judge who was caught red-handed and is nowadays lobbying along with patent maximalists. They really hate Section 101, which basically invalidates just about any software patent.

A patent maximalist called Janal Kalis has just noted that “PTAB Affirmed an Examiner’s [Section] 101 Rejection of Claims in a Thompson Reuters Patent Application for Docketing: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017005527-11-07-2018-1 …”

This is the usual; whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high. Berkheimer has changed practically nothing.

“…whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high.”So what will those patent maximalists do about Section 101 and about PTAB? “Despite Misleading Question, Berkheimer Case Has Legs at the Supreme Court,” Dennis Crouch says. Crouch himself is a very vocal patent maximalist and opponent of Section 101. And no, he’s just trying to sway the court’s stance, having long promoted software patents and patent trolls. The EFF has also just urged the Justices at SCOTUS to examine the case because they want closure (the court repeatedly declines to revisit the subject). Crouch mentioned “go[ing] to a jury.” To quote: “In my view, the question presented by HP’s attorneys intentionally creates confusion as the Federal Circuit did not rule (1) that eligibility is a question of fact; or (2) that any aspect of the eligibility question goes to a jury. Rather, the Federal Circuit has repeatedly ruled, including in Berkheimer, that the question of “eligible subject matter is a question of law.” I’ll also note that no court following Berkheimer has seen eligibility itself as a question of fact or attempted to get a jury verdict on the issue. I contacted David Salmons (counsel of record for HP) to see what I’m missing about the misleading question, but he did not respond.”

He was later admitting a mistake, citing patent troll Finjan. These Berkheimer pushers (who are software patents boosters) cite Microsoft’s patent troll Finjan in relation to letting a nontechnical jury decide on patents (a big mistake). His mea culpa:

In my recent Berkheimer post, I wrote that “that no court following Berkheimer has … attempted to get a jury verdict on the issue.” Turns out that I’m potentially wrong.

In the pending case of Finjan, Inc. v. Juniper Network, Inc. (N.D. Cal. 2018), Judge Alsup has ordered a jury trial on the “inventive concept” question. In its order, denying summary judgment, the court found that the Claim 10 of Finjan’s U.S. Patent No. 8,677,494 was directed to the abstract idea of “collecting data, analyzing data, and storing results.” (Alice Step 1). However, the court decided to wait for trial to determine the inventive concept question…

Looking at this troll’s affairs, it’s pretending to be an actual company, it attracts some investment, and it speaks of ‘sales’ when all it really does is litigation. This is the kind of firm that needs to go bankrupt because it’s a classic troll.

“Logical arguments about the scientific contribution of such patents (or detriment thereof) don’t seem to bother them. A facts-based, evidence-based discussion just doesn’t appeal to these people.”Jury trials, as we have been pointing out several times over the past year, are more likely to get things wrong; jury trials are not suitable for technical matters involving patents, which they don’t understand (particular scientific disciplines). This is misapplying one principle of law to granting of a monopoly. Juvan Bonni, who works with Crouch, has incidentally just promoted these two recent papers. One of these is sort of ‘court bashing’ by Cambridge Technology Law (a push against PTAB); they just loathe patent quality, so they try to discredit the court and AIA. How typical. More lobbying as “papers” (the Koch Brothers sponsor some other attacks on PTAB, using ‘scholars’ in institutions they sponsor). The second of those two speaks of juries in patent litigation. Watchtroll has meanwhile taken this further with N. Scott Pierce (Saul Ewing Arnstein & Lehr, LLP), who repeats the same arguments (more or less). What we find noteworthy here is that almost a year later (10 months) they are still pushing Berkheimer, engaging in revisionism about Oil States (no matter what SCOTUS ruled this past summer) and obsess over faulty jury trials (based on misinformation) so as to discredit the court. Logical arguments about the scientific contribution of such patents (or detriment thereof) don’t seem to bother them. A facts-based, evidence-based discussion just doesn’t appeal to these people. They never wrote a single line of code.

12.01.18

Patent Offices Reward Microsoft for Corruption

Posted in America, Europe, Microsoft, Open XML, OpenDocument, Standard at 5:49 am by Dr. Roy Schestowitz

No-OOXML

Summary: The EPO and Britain’s UKIPO join the USPTO in making Microsoft’s proprietary format the ‘standard’ in filing; this merely perpetuates the negative publicity associated with patent offices

THIS IS not an unfamiliar topic. A decade ago (or more) we wrote hundreds of articles about Microsoft’s OOXML-related abuses. Corrupt European Patent Office (EPO) officials now help the abusers from Microsoft by advancing their fake ‘standard’ that they bribed and corrupted ISO for. The U.S. Patent and Trademark Office (USPTO) does too, but the latter is based in the US (where Microsoft is based, unlike ISO, which is Europe-centric).

“We suppose they’re perfectly OK being agents of Microsoft, rewarding the company for its corruption instead of embracing open standards anyone can use (not just clients of Microsoft).”As IP Kat put it two days ago: “The EPO and UKIPO are teaming up to make online filing easier to understand. In the EPO and UKIPO online services workshop you will learn about the EPO’s web-based online filing system and the second phase of the DOCX filing pilot. Witness a live demonstration of Mailbox and hear an overview of best practice interaction with the EPO.”

No ODF pilot? Why not? We suppose they’re perfectly OK being agents of Microsoft, rewarding the company for its corruption instead of embracing open standards anyone can use (not just clients of Microsoft).

11.25.18

Self-Professed Linux ‘Lover’ Microsoft Passes Questionable Patents to DJI as Part of “Microsoft-DJI Collaboration on Azure”

Posted in GNU/Linux, Microsoft, Patents at 4:18 am by Dr. Roy Schestowitz

Still scattering patents to trolls and other entities which help Microsoft promote its protection racket, “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: Microsoft is again scattering patents around (for profit and lawsuits), having long done that with patent trolls which attack GNU/Linux

Microsoft is reportedly selling USPTO-granted patents, potentially software patents, for patent litigation purposes. So much of a “truce” and “peace” with Linux, eh?

Microsoft recently joined the software patents apologists at OIN and LOT Network. We didn’t expect that to end Microsoft’s bad behaviour, especially because Microsoft publicly exploited the membership to ‘sell’ “Azure IP Advantage”, which is basically a protection racket.

“The report itself is paywalled, but the tweets gave away the gist of it.”A site sponsored by Microsoft and its trolls (several of them) has repeatedly noted in recent days that “DJI acquired US patents from Microsoft amid litigation fight with competitor” and this “deal follows Microsoft-DJI collaboration on Azure and AI for drones,” according to a later note. The report itself is paywalled, but the tweets gave away the gist of it.

DJI acquired US patents from Microsoft amid litigation fight with competitor

[paywall]

That same site has meanwhile spoken about and as usual glorified patent trolls in China (article by Bob Stembridge). To these people, having been literally sponsored by trolls, trolling is a good thing. They even use the term “NPE”. IAM is a really nasty propaganda site of trolls; the malicious agenda is one they’re not ashamed of, presumably because they’re greedy. The paywall is their way to hide from critics.

“To these people, having been literally sponsored by trolls, trolling is a good thing. They even use the term “NPE”. IAM is a really nasty propaganda site of trolls; the malicious agenda is one they’re not ashamed of, presumably because they’re greedy.”One piece that isn’t paywalled is promotional propaganda from Kent Richardson (Richardson Oliver Law Group), who sells the illusion of growing demand for low-quality patents; Microsoft now sells some of these, showing that Microsoft is still a dangerous company. “The full ROL Group report on the current state of play in the brokered patent market will be published in issue 93 of IAM, available online to subscribers at the end of this month,” it says. Further up it almost refutes the headline itself when it says: “Two years ago, the cover of IAM Magazine showed a beaten boxer stumbling to his feet, representing a patent market struggling to recover from the brink of disaster. With asking prices down 30%, each punch is no longer as strong as it was. But the boxer is nimbler and with 53% more transactions than two years ago, he is landing a lot more punches.”

“It’s just the Microsoft-Novell strategy rebranded a bit.”That ‘market’ is still diminishing, in terms of overall value. Many companies just distribute worthless patents to trolls, many of which simply go out of ‘business’.

Either way, it could be argued that Microsoft no longer saw value in the above patents; by passing these patents to DJI as part of “Microsoft-DJI collaboration on Azure” it basically allows DJI to sue (back) a competitor. Microsoft is trying to market Azure by fueling unnecessary patent litigation. So much for a ‘new’ Microsoft, eh? It’s just the Microsoft-Novell strategy rebranded a bit.

11.19.18

A Fresh Look at Recent 35 U.S.C. § 101 Cases Reveals Rapid Demise of Software Patents Even in District (Lower) Courts

Posted in Courtroom, Microsoft, OIN, Patents at 5:23 am by Dr. Roy Schestowitz

Summary: Contrary to narratives that are being spread by the patents and litigation ‘industry’, there’s anything but a resurgence of patents on algorithms; in the United States they’re almost always rejected by courts at all levels

THINGS have come along pretty nicely after Alice (SCOTUS) because in light of 35 U.S.C. § 101 the courts are rejecting a lot of software patents, no matter what the U.S. Patent and Trademark Office (USPTO) said or still says. The law is what matters. If the USPTO grants patents which are then used to subvert justice, the USPTO will suffer in the long run.

Let’s start with some examples of recent rulings. A pro-software patents blog implicitly admits — by way of example/s — that software patents are worthless junk nowadays. They’re nearly impossible to defend. Peter Keros wrote about the Southern District of New York rejecting an asserted patent, citing § 101.

A method for analyzing text to determine a strength of an opinion is not patent-eligible subject matter under § 101. Isentium, LLC v. Bloomberg Fin. L.P., 17-cv-7601 (PKC) (S.D.N.Y. Oct. 29, 2018).

U.S. Patent No. 8,556,056 is directed to a multi-step method for evaluating statements that discuss publicly traded assets to determine whether the statement express a positive, negative, or neutral opinion (i.e., a “polarity”) and to assign a strength value to the opinion. Specifically, Plaintiff analyzed Tweets to provide information for financial professionals. The Court granted a 12(b)(6) motion to dismiss the Complaint, holding that the claims of the ‘056 patent were ineligible under 35 U.S.C. § 101.

The Central District of California, according to Nathan Smith, did similarly. Even district courts are growingly fed up with software patents. As Smith explained:

The Central District of California recently granted, in part, a motion to dismiss based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test, in claims of U.S. Patent No. 8,934,535, directed to a method for data compression and decompression. Realtime Adaptive Streaming LLC v. Google LLC, et al., No. CV 18-3629-GW(JCx) (C.D. Cal. Oct. 25, 2018). The court denied the motion for two other patents (U.S. Patent Nos. 9,769,477 and 7,386,046) with claims directed to system of data compression and decompression. The method claims of the ’535 patent were ineligiblebecause the patent failed to state that the claimed method would result in an increased compression speed. Concerning the’477 and ’046 patents, on the other hand, Google failed to show that the claimed systems, which included multiple compression encoders selected for use based on evaluating data, did not impart structural organization to computer processing comparable to the computer memory system in Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253, 1259 (Fed. Cir. 2017).

Going back again to the Southern District of New York, Bryan Hart wrote about another fake US patent or software patents that § 101 renders obsolete.

Personal Beasties stumbled out of the gate against Nike, with a district court invalidating Personal Beasties’ patent for ineligible subject matter on a motion to dismiss. Personal Beasties Group LLC v. Nike Inc., An animated character—even an encouraging one—did not provide enough to leap the § 101 hurdle.

Personal Beasties accused Nike of patent infringement in the Southern District of New York over U.S. Patent No. 6,769,915 for an “Interactive System for Personal Life Patterns.”

This blog’s sole exception (lately) has been covered by Charles Bieneman. It is from Delware, not the higher court, so this case/outcome can still be overturned on appeal (CAFC is tougher):

Patent claims directed to mapping “a physical location determined by the user . . . to a video game environment” have survived a Rule 12(b)(6) motion alleging patent-ineligibility under 35 U.S.C. § 101 and the Alice patent-eligibility test. Blackbird Tech LLC v. Niantic, Inc., No. 1-17-cv-01810 (D. Del. Oct. 31, 2018). U.S. Patent No. 9,802,127 allows a user to “experience[] objects from the users [sic] entered location while playing the video game.”

[...]

In arguing for application of the Aliceabstract idea test, the defendant took a broad approach in alleging an unpatentable abstract idea: arguing “that the ’127 patent claims are directed to the abstract idea of ‘receiving, processing, and displaying or storing location information.’” The defendant argued that its motion should be decided like a Rule 12 motion in a 2016 Colorado case, Concaten, Inc. v. Ameritrack Fleet Solutions, LLC, which held patent-ineligible claims directed to providing data to assist in snow removal.

But the court here disagreed, because here “[t]he mapping application requires taking camera images of a real physical space, where the user is located, and integrating those images as a video into a virtual video game environment.” Moreover, “the mapping step here is tethered to specific instructions” specifying images to be mapped, their locations, and how to display them. Citing Enfish, LLC v. Microsoft Corp. (Fed. Cir. 2016), the court found that the defendant’s proposed abstract idea was too broad, applying “an inappropriate level of abstraction such that its description of the claims is ‘untethered from the language of the claims.’”

Verizon, over at the Eastern District of New York, is mentioned by the patent maximalist Matthew Bultman, who explains that the Federal Circuit is sane/rational/honest enough to explain why patent lawsuits must be filed in the appropriate venue. From the outset:

Verizon subsidiary Oath Holdings Inc. does not have to defend a patent lawsuit over advertisement technology in the Eastern District of New York, the Federal Circuit ruled Wednesday

Not only Verizon grapples with such patent cases; see Motorola’s new press release and shallow press coverage that says: “The U.S. International Trade Commission (ITC) affirmed an administrative law judge’s finding that Hytera Communications of China infringed several Motorola Solutions patents.”

As background to the Hytera case consider this old post of ours; the ITC got involved, leaning towards the American complainant, as usual. Microsoft turned to it over a decade ago when it sought to embargo rival products (mice).

Citing a case just over a month old (October 16th), Bradley Arant Boult Cummings LLP’s Ryan Letson covered in JD Supra and Lexology [1, 2] yet another invalidation based on 35 U.S.C. § 101:

Add internet telephony systems to the list of computer-related technologies considered for patent eligibility under 35 U.S.C. § 101. Under current law, among other requirements, in order to qualify as patent-eligible under § 101, a patent claim involving computer-related technology must be directed to something more than simply an abstract idea that fails to implement an inventive concept. A patent’s claims will fail this test if a court finds that they are simply directed to “method[s] of organizing human activity” or “a known idea” that “is routine and conventional.”

High courts continue telling/signaling to the Office that software patents are bunk, but will the officials at the Office pay attention or just ignore if not ‘diss’ the high courts?

Writing about Ancora’s case against HTC, Michael Borella has just taken note of another 35 U.S.C. § 101 case (one that many wrote about because of the unusual outcome):

Ancora sued HTC in the Western District of Washington alleging infringement of U.S. Patent No. 6,411,941. HTC moved to dismiss the case, contending that the claims of the patent were ineligible under 35 U.S.C. § 101. The District Court granted HTC’s motion. Ancora appealed to the Federal Circuit.

The ’941 patent is directed to mechanisms for preventing a computer from running unlicensed software. While using license keys to control software was well-known at the time of the patent’s earliest priority date (1998), the patent purports to do so in a rather unusual fashion (for that time).

[...]

On appeal, the Federal Circuit rapidly answered the patent-eligibility question in the positive. Relying on recent precedent, such as Finjan, Inc. v. Blue Coat System, Inc., the Court stated that “[i]mproving security—here, against a computer’s unauthorized use of a program—can be a non-abstract computer-functionality improvement if done by a specific technique that departs from earlier approaches to solve a specific computer problem.”

The Court went on to disagree with the District Court, noting that the claim does recite storing the verification structure in a section of BIOS with certain beneficial characteristics, which was asserted to be an unexpected technique at the time of invention. Thus, in the view of the Federal Circuit, the claim does not recite a mere desired outcome, but how to achieve this outcome. Further, the claim addressed a technological problem associated with computers — software license verification — rather than a business, mathematical, or financial problem.

Notice that Finjan got cited. It’s relevant to this because of an exceptional high court (CAFC) judgment from the start of this year. We wrote about it several times at the start of 2018. Finjan is connected to Microsoft. This patent troll had a shareholders’ conference not so long ago. Did Microsoft give some more money to this troll any time lately? Firms (litigation pipelines would be a more suitable description) like Finjan definitely help Microsoft sell ‘protection’ and Finjan always sues Microsoft’s competition. When Microsoft joined OIN some weeks ago it kept promoting Azure as the ‘safe’ (from its patent trolls) option. “Abusix Joins Open Invention Network as Licensee” is the title of this new press release, joining the likes of many recent articles regarding OIN (this for example; it has been circulating lately). Abusix will get virtually nothing out of it, except assurance of no direct lawsuit from particular non-troll companies (except indirectly). It is worth noting that a Microsoft-connected propaganda site last week spoke about FOSS, which it is trying to wed (a shotgun wedding) to software patents.

Going back to the aforementioned HTC case, Matthew Bultman explained it as follows: “The Federal Circuit on Friday reversed a lower court ruling that a computer security patent asserted against HTC Corp. is invalid under the U.S. Supreme Court’s Alice standard, saying the patent…” (paywall hereon).

“Fed. Circ. Revives Computer Security Patent Axed Under Alice” is the headline and noteworthy is the word “revive” here; It was used by Suzanne Monyak as well as her colleague Matthew Bultman almost at the same time (“Fed. Circ. Won’t Revive Xactware Patent Challenges” was the headline). They try to insinuate that fake patents that should never have been granted in the first place got ‘killed’ or ‘murdered’ or something equally criminal.

“The Federal Circuit on Tuesday refused to revive Xactware Solutions Inc.’s challenges to two patents related to aerial rooftop measurement software,” Monyak wrote, “rejecting the company’s bid to nix two Pictometry International Corp…”

Noteworthy were the responses from patent maximalists. Janal Kalis quoted the filing: “the claimed advance is a concrete assignment of specified functions among a computer’s components to improve computer security, and this claimed improvement in computer functionality is eligible for patenting. As a result, the claims are not invalid under § 101.”

He also took note of “Another Very Creepy Facebook Patent Application; This one killed at the PTAB with 101; Run, Don’t Walk Away from Facebook: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001718-10-22-2018-1 …” (and as we mentioned yesterday, there’s this bunch of articles with headlines like “Who lives with you? Facebook seeks to patent software to figure out profiles of households”).

What’s noteworthy in all the above is that it’s very rare nowadays for software patents to withstand 35 U.S.C. § 101, even in the face of the Berkheimer and Aatrix nonsense (or hype).

“Aatrix Expands Their Payroll Tax Reporting Offerings,” said a widely-spread new press release [1, 2]. It was published a few days ago. It’s another one of many which take note of the software patents. Aatrix has become associated with software patents predation and Aatrix the company might find it hard to dissociate from it (like Alice and Bilski).

“Apprenda sells assets for $1.55 million,” says this new headline, even though software patents are not an “asset” but an illusion thereof as they’re useless and immaterial.

As we approach 2019 we must wonder how many companies still think that it’s worth pursuing software patents in the US.

11.09.18

With Patent Trolls Like Finjan and Blackbird Tech out There, Microsoft in OIN Does Not Mean Safety

Posted in Microsoft, OIN, Patents at 4:39 am by Dr. Roy Schestowitz

LOT and OIN (DPAs) used by Microsoft to promote "Azure IP Advantage"

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: With many patent trolls out there (Microsoft’s Intellectual Ventures alone has thousands of them) it’s not at all clear how Microsoft can honestly claim to have reached a “truce”; OIN deals with issues which last manifested/publicly revealed themselves a decade ago (Microsoft suing directly, not by proxy)

PUBLISHED behind paywall yesterday (and then promoted in Twitter) was an article titled “More valuable to offer patent licences through LOT and OIN than do it ourselves, says Microsoft IP chief” (based on a Microsoft-friendly and trolls-funded publisher).

We can imagine the gist of it because we covered it based on the tweets while also expressing concerns about the new Deputy Director of the U.S. Patent and Trademark Office (USPTO). Even Dennis Crouch noted that “[s]he was also GC at Immersion Corp — by that point the company was really just enforcing its patents on haptic feedback game controllers.” By “enforcing” he meant suing. They sue a lot of companies, having already earned themselves a reputation as “patent troll” (some news sites do call them that].

As we explained yesterday, Microsoft still relies on patent trolls to attack companies, enticing them into Microsoft’s “protection racket” in Azure (“Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]). OIN members would be defenseless.

OIN has just published this press release about expanding the scope of “protection” (from other OIN members), “bringing the total number of protected packages to 2,873,” it said.

Here are some key parts:

Open Invention Network (OIN), the largest patent non-aggression community in history, with more than 2,750 community members, announced today that it has increased its patent non-aggression coverage through an update to its definition of the Linux System. The expansion is part of Open Invention Network’s program to regularly revise its Linux System coverage to keep pace with innovation.

“Linux and open source software are thriving, and they continue to transform industries,” said Keith Bergelt, CEO of Open Invention Network. “This Linux System expansion enables OIN to keep pace with open source innovation, promoting patent non-aggression in the core. As open source grows, we will continue to protect Linux and adjacent technologies through strategic software package additions to the Linux System.”

The expansion includes 151 new packages, bringing the total number of protected packages to 2,873. “With this update to the Linux System definition, OIN continues with its well-established process of carefully maintaining a balance between stability and innovative core open source technology,” stated Mirko Boehm, OIN’s director for the Linux System definition. “While the majority of the new additions are widely used and found in most devices, the update includes a number of key open source innovations such as Kubernetes, Apache Cassandra and packages for Automotive Grade Linux.” The 5.5 percent growth over the 2017 coverage reflects OIN’s conservative and consensus-driven Linux System update process.

[...]

Funded by Google, IBM, NEC, Philips, Red Hat, Sony, SUSE and Toyota, OIN has more than 2,750 community members and owns more than 1,300 global patents and applications. The OIN patent license and member cross-licenses are available royalty-free to any party that joins the OIN community.

But OIN cannot defend from trolls. It cannot. At best it can discourage Microsoft from passing yet more patents to patent trolls, but those trolls can get patents from other avenues and OIN can, at best, try to outbid them. According to this press release, within a few days the Microsoft-funded patent troll Finjan can decide which Microsoft rival to sue next, having already sued many of them. What good would OIN membership have been? No good, no use.

A Section 101 challenge (invoking 35 U.S.C. § 101, based on Alice/SCOTUS) has meanwhile been noted in relation to a notorious patent troll called Blackbird. It uses software patents for extortion (sometimes Microsoft’s rivals) and the case needs to be escalated to the Federal Circuit (expensive) for invalidation that seems likely. To quote:

In the U.S. District Court for the District of Delaware, Plaintiff (Blackbird) sued Defendant (Niantic) alleging infringement of U.S. Patent No. 9,802,127. Niantic filed the present motion to dismiss the case for failure to state a claim under Rule 12(b)(6), on the basis that the asserted patent claims are invalid under 35 U.S.C. § 101.

The Court followed the two-step approach set forth by Alice to evaluate the section 101 challenge, and ultimately found the claims satisfied step 1 (leaving step 2 unnecessary), and thus, the motion was denied.

The ’127 patent is directed to a video game in which user determined location information (e.g. GPS, Google Maps, an entered address or the like) is acquired, and the determined location information of a physical location is mapped to a video game environment so that the user of the video game experiences objects from the user’s physical location while playing the video game.

The bottom line is, as we’ve explained before (even yesterday), OIN does not do anything to eliminate software patents (it does not oppose these!) and it’s almost pointless when patent trolls, including Microsoft’s own, launch the litigation campaigns. Microsoft has a “clever plan”, but Microsoft staff is not allowed to speak.

11.08.18

Microsoft is Supporting Patent Trolls, Still. New Leadership at USPTO Gives Room for Concern.

Posted in Deception, Microsoft, Patents at 7:58 am by Dr. Roy Schestowitz

LOT Network: A WHOLE LOT OF SOFTWARE PATENTS

Summary: New statements from Microsoft’s management (Andersen) serve to show that Microsoft hasn’t really changed; it’s just trying to sell “Azure IP Advantage”, hoping that enough patent trolls with their dubious software patents will blackmail GNU/Linux users into adopting Azure for ‘protection’

THIS morning we wrote four articles about the European Patent Office (EPO), but we haven’t lost sight of American matters, which we typically cover in the weekend due to lack of time. Yesterday we wrote about the aggressive past (arguably patent trolling) of the new Deputy Director of the U.S. Patent and Trademark Office (USPTO). This past of hers has been mentioned in IPPro Patents coverage that yesterday noted “Peter was also previously vice president and general counsel of Immersion Corporation, where, among other legal roles, she led its IP portfolio.”

Immersion Corporation is a patent aggressor that many out there have also dubbed “patent troll”. Peter’s boss/superior is another person who comes from a questionable background and was likely appointed because of nepotism. So what on Earth is going on? It’s not hard to see who benefits (cui bono).

The Microsoft-friendly and Microsoft-sponsored IAM (it is also sponsored by Microsoft’s patent trolls) has just quoted/paraphrased Microsoft’s patent chief Andersen as saying: “more valuable for us to essentially license our patents through Open Invention And LOT Networks than to try to license them on our own…”

What on Earth does that even mean? Can that be interpreted as Microsoft using OIN to just tax/cross-license with software patents? Remember that Microsoft staff was forbidden from commenting on it. That can only mean that Microsoft is hiding something.

Microsoft, morever, supports the terrible Director who supports patent trolls. Quoting IAM’s tweet: “Andersen on PTO Director Iancu – I’m a fan, he’s doing a super job. One of things we’ve told him is importance of getting certainty back particularly post-Alice. PTO has a role to play in giving us more clarity and I think he’s taken that to heart…”

That doesn’t inspire a positive view of Microsoft’s ‘new’ policy or strategy, which also involves selling ‘protection’ from its patent trolls through Azure (they call it “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21]). Microsoft uses OIN and LOT Networks to actively promote this racket.

11.05.18

Blockchain Hype Exploited by the EPO and by Patent Law Firms to Wrongly Assert Free/Libre Software Can Coexist With Software Patents

Posted in Deception, Europe, Free/Libre Software, IBM, Microsoft, Patents, Red Hat at 12:48 am by Dr. Roy Schestowitz

Summary: Managing IP and ‘Software IP’ (IAM) among other think tanks of patent trolls and litigators continue to advance a toxic agenda while the EPO openly and endlessly promotes software patents under the guise of blockchain “innovation”

THE management of the USPTO has been receiving backlash recently. Blockchain, AI and other media buzz get used to grant software patents. A lot of people aren’t happy about it. Soon, to make matters potentially worse, IBM will take over Red Hat. IBM is a strong proponent of software patents.

Last week Red Hat’s McBride was quoted as saying: “we have been very single minded about patents – we don’t see any value in them other than the deterrent impact they have…”

But that does not deter patent trolls. In fact, it doesn’t really accomplish anything.

Will things improve/change for the better any time soon? That depends. In a sense, things improved a little when Microsoft left only its patent trolls to do the battles. Microsoft will not refrain from lobbying for software patents and it still pursues some of its own (there’s a new article right now about “virtual keyboard methods for Xbox and touch” — another patent from Microsoft).

The way we see it, there’s a battle between the litigation ‘industry’ (or ‘in-house’ legal teams at large corporations) and geeks who actually write code and make things. The former group is trying to justify its existence and for that there’s a constant need for litigation (like weapons makers rely on perpetual war/conflict).

“In-house counsel from confectionery, biopharmaceutical, telecommunications, technology, plastics and medical research companies explain how they’re measuring patent worth to find cost-saving wins,” this article from a site of the litigation ‘industry’ (Managing IP) wrote some days ago. Extortion “on a budget”? This is a truly sick ‘industry’ of litigation and threats and what “cost-saving wins” means is neither cost-saving nor a win.

“AMERICAS Thirteen practitioners from McKool Smith have established a litigation boutique called Reichman Jorgensen with offices in Silicon Valley, Atlanta and New York,” Managing IP wrote around the same time. These vultures and parasites call their extortion rackets “boutiques”; McKool Smith represents a lot of patent trolls.

It has meanwhile emerged that there’s another AIPLA echo chamber lobbying event. It calls for software patents because greedy lawyers want lots of frivolous lawsuits to profit from at geeks’ expense. Ellie Mertens (Managing IP) wrote:

The software patent eligibility situation in the US is “a really high fence” that requires some sparkle to pass while the European test is drier

The software patent eligibility situation in the US is “a really high fence,” said Sarah Knight of Talem IP in a panel at the AIPLA Annual Meeting last week, “when it should be just a threshold.”

Managing IP is on the same bandwagon; just look at who sponsors Managing IP. The same goes for IAM, which ran a pro-software patents event last week. In their own words: “First session of day at our #softwareIP event focusing on patentability of software globally with great panel comprising USPTO, Amadeus, Facebook, Alibaba, Lung Tin IP and Haseltine Lake [] Jean-Francois Cases of Amadeus – 10/15 years ago it was impossible to get a software patent granted in Japan, now it’s one of easiest jurisdictions. For us right now India is hardest place to get a software patent…”

More so than Europe.

The corrupt EPO has made software patents far too easy to get. Blockchain patents (software patents) are outside the scope of European patent law, but today’s EPO routinely ignores and violates the law anyway. Here is what the EPO wrote before the weekend: “#Blockchain technology is not without controversy. You can discuss patenting it with patent specialists and blockchain professionals at this #conference: http://bit.ly/EPOblockchain18 ”

The EPO is nowadays plagued with nepotism and rapidly-declining patent quality; its founding document (EPC), European authorities and the rule of law are routinely spat at. Even insiders notice. They write about it. They sign petitions.

Even outsides complain: “Dear @EPOorg – blockchains are not device, they’re not software. “𝘉𝘭𝘰𝘤𝘬𝘤𝘩𝘢𝘪𝘯” 𝘪𝘴 𝘢 𝘧𝘢𝘯𝘤𝘺 𝘸𝘰𝘳𝘥 𝘧𝘰𝘳 𝘢 𝘱𝘢𝘳𝘵𝘪𝘤𝘶𝘭𝘢𝘳 𝘴𝘶𝘣𝘴𝘦𝘵 (merkle trees) 𝘰𝘧 𝒑𝒖𝒓𝒆 𝒎𝒂𝒕𝒉! There’s no software involved, it doesn’t require computers. Pen & paper works too…”

Yes, blockchains aren’t exactly new; few people understand the underlying concepts and the EPO exploits that. Here again the EPO is promoting software patents ever so shamelessly. That’s just merkle trees: “What are the main challenges in patenting #blockchain & its applications? Experts will discuss that and their solutions at this event we’re co-hosting with @GoI_MeitY: http://bit.ly/indoeur pic.twitter.com/hZjqGCr4Sn”

The mentions of blockchains are endless at the EPO. Here again the EPO does it: “Are you involved in #patents and #blockchain developments? Then this is the event to attend!”

The management of the EPO does not understand blockchains (the people at the top are not scientists and they were selected for nepotism); it got a lot worse under António Campinos, who is merely a quieter version of Battistelli.

IAM wrote: “Amadeus’s Cases – in Europe our experience is that once an examiner has made up their mind on an application it’s very hard to change it…”

Examiners at the EPO simply lack the time to properly assess applications. We know it because they say so, usually anonymously.

Notice what the EPO wrote some days ago: “Elke von Brevern, PCT Expert at the EPO, and Richard Garvey, Key Account Manager at the EPO, will tell you how you yourself can make the PCT system more efficient. Join them in Washington…”

And Houston, Texas. Yes, also in Texas, where many law firms work with patent trolls. Notice what the EPO has turned into and who it’s attempting to appeal to. Where next? Dallas? This latest roundup from “Dallas Invents” contains a lot of software patents (also creepy ones like “Apparatus and method for deploying an implantable device within the body”).

Today’s EPO is very much on board with patent trolls’ agenda and IAM’s too. Citing Alibaba’s Roger Shang, IAM wrote about software patents again; “we don’t see a contradiction between open source and patents,” Shang is quoted as saying. That’s a lie.

Alibaba was also mentioned a few days ago in relation to patents on blockchains, not in China (where software patents are permitted) but in the US. “Alibaba Files Patent For Blockchain System,” says the headline. So these ridiculous software patents from China have spread to the West with Campinos and Iancu eager to allow software patents. From the article: “Chinese e-commerce conglomerate Alibaba has filed a patent application with the U.S. Patent and Trademark Office (USPTO) for a blockchain based system that allows a third party administrator to intervene in a smart contract in case of illegal activities. The USPTO published the patent application on October. 4, 2018.”

Alibaba Group is a big “client” to the USPTO, so we won’t be surprised to see such patent applications accepted. Doubling down on the lie above, days ago we saw a new article titled “10 Things to Know About The Intersection of Blockchain Technology, Open Source Software, and Patents”. Complete nonsense right from the get-go or the headline, courtesy of Sheppard Mullin Richter & Hampton LLP. Blockchain patents are fake patents that would be rejected by courts and these patents are clearly not compatible with the distribution model of Free/Open Source software. The article says: “This set of issues is important now because blockchain technology is on the verge of mainstream commercialization and much of it relies on open source software. As with any technology where there is rapid innovation, the number of patents being filed and obtained is increasing. The interplay between patents and open source is often confused. The recent changes to the scope of patentable subject matter under U. S. patent laws have created uncertainty over what is patentable. This is particularly true with respect to blockchain-based inventions and how innovations in this space are disrupting business processes.”

This is misleading because those things (what they call “blockchain-based inventions”) have always been around to some degree. Terminology may have changed, but like “cloud” there’s a hype explosion and it’s mostly associated with a word, not substance. These patent law firms are trying to destroy software development and they’re misleading people by saying software patents are OK if you say “blockchain”. Mind this days-old spammy press release, published under the headline “Can You Patent the Blockchain if it is Open Source?”

The actual text starts under “Why Businesses using Blockchain Technology are Filing for patents and Other Useful Info about Software Patents” (after that they merely promote their services). We’re assuming that they hope people may search the Web, perhaps searching for “Blockchain” and “Open Source”, then give them a call.

Here’s another new one: “10 Lessons On Blockchain And Open-Source Licenses”

So says Law 360‘s James Gatto and the patent ‘industry’ when they try to impose software patents on Free/Open source developers, mainly by using hype waves. “On their own,” Gatto says, “blockchain technology, open-source software and patents each present legal issues that are often complex and frequently misunderstood. When combined, the complexity and misunderstandings of these three topics are…”

The only real connection between these three is that a lot of code associated with blockchains is Free/libre software and companies try to take control by claiming monopolies on the algorithms — something which they should not do.

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