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06.20.18

The Eastern District of Texas is Where Asian Companies/Patents/Trolls Still Go After TC Heartland

Posted in America, Microsoft, Patents, Samsung at 1:06 am by Dr. Roy Schestowitz

Katana Silicon Technologies

Summary: Proxies of Longhorn IP and KAIST (Katana Silicon Technologies LLC and KAIST IP US LLC, respectively) roam Texas in pursuit of money of out nothing but patents and aggressive litigation; there’s also a Microsoft connection

THE decision on TC Heartland (SCOTUS) dealt with the venue at which companies operate and what this means for the venue of litigation (where patent lawsuits get filed). Weeks ago there were some new cases related to this, especially when it comes to foreign (non-US) companies from somewhere like South Korea or Taiwan. We wrote about that.

For those who haven’t been keeping track, KAIST has generally become a patent parasite masquerading as “education” or “research” (that’s how it’s known or recognised around Korea or Seoul, like CSIRO in Australia). Jacob Schindler of IAM (the patent trolls’ lobby) now celebrates litigation in the Eastern District of Texas by KAIST’s proxy in another country (KAIST IP US LLC). It’s a shell entity of an entity that produces nothing. This shell has won the case, but we certainly hope that Samsung will appeal this decision to the Federal Circuit, overriding the notorious biases of the Eastern District of Texas (biases which is openly advertises). As IAM makes clear, the Patent Trial and Appeal Board (PTAB) was already involved prior to this. From the summary (outside the paywall) it’s made apparent that a nontechnical jury decided on this technical case (we explained many times why such trials may be unsuitable for patents):

Last Friday, a jury in the Eastern District of Texas ordered Samsung Electronics to pay $400 million to the IP licensing arm of South Korea’s top technology university. KAIST IP US LLC, an affiliate of the Korea Advanced Institute of Science and Technology, saw its patent survive multiple IPRs and a dispute over its proper ownership en route to a courtroom victory over South Korea’s most prominent technology company. While US litigation watchers will be wary of a reversal on appeal, the big award signals that top Asian university IP owners like KAIST cannot be ignored.

We have meanwhile seen/come across yesterday’s article titled “Samsung Threatens U.S. Prosperity By Disregarding Intellectual-Property Rights” (this author apparently doesn’t know that Samsung has the most US patent grants per annum and held the same title at at the EPO in the past).

Anyway, what’s worthy about the above case is that a Korean entity used the US courts to go after another Korean entity, but only because it’s the Eastern District of Texas, which openly brags about being friendly towards plaintiffs, welcoming patent trolls such as Dominion Harbor with many Asian patents (almost expired).

It has meanwhile emerged, also based on the patent trolls’ lobby (IAM), that a Japanese company has had its patents passed to patent trolls. Guess where…

“Foxconn transfers former Sharp patents to Texas-based NPE,” said the tweet and the article said:

Longhorn IP, the Texas-based NPE, has launched its fifth portfolio, a collection of semiconductor patents originally owned by Sharp. The licensing company, run by Khaled Fekih-Romdhane and Chris Dubuc, is calling its new vehicle Katana Silicon Technologies LLC – a name hinting at the Japanese source of the patents, which USPTO assignment records reveal is Sharp.

Notice how Longhorn IP uses shells, as is so typical in Texas (Dominion Harbor does this as well). There’s a bit of a connection between those two; at the end of last year IAM said that “Dominion Harbor and Longhorn IP [had] both formed partnerships with Beijing East IP…”

The “Founder and Managing Member” of Longhorn IP/Katana Silicon Technologies LLC used to work for the Microsoft-connected Acacia, according to this page. Dominion Harbor receives the lion’s share of patents from the Microsoft-connected Intellectual Ventures. Guess where the other founder came from; he was “Licensing Program lead at Intellectual Ventures.”

06.17.18

Microsoft is Still ‘Cybermobbing’ Its Competition Using Patent Trolls Such as Finjan

Posted in Deception, Microsoft, Patents at 4:27 am by Dr. Roy Schestowitz

‘Protection’ offered only to those who pay Microsoft for “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20]

Cybermobbing

Summary: In the “cybersecurity” space, a sub-domain where many software patents have been granted by the US patent office, the patent extortion by Microsoft-connected trolls (and Microsoft’s ‘protection’ racket) seems to carry on; but Microsoft continues to insist that it has changed its ways

LAST NIGHT I wrote my personal thoughts on the GitHub takeover (having been approached by British media for comments on the subject). I remain rather concerned, bearing in mind that there are some people out there who might fall for the elaborate PR campaign and actually believe Microsoft-funded voices.

I’ve decided to modify the following meme for illustrative purposes:

Fear politics for Azure IP Advantage

“Entryism is not a new strategy (see Novell and Nokia for example) and only the PR strategy has evolved.”Microsoft has not really changed. Entryism is not a new strategy (see Novell and Nokia for example) and only the PR strategy has evolved. For those who bring up the patent aspects of it, here’s a reminder from the Microsoft-funded IAM (funded by Microsoft as recently as this month, yet again).

They speak of “cybersecurity” in this blog post and corresponding tweet, but don’t fall for buzzwords; they speak mostly about software here. To quote:

New research has revealed that IBM owns the largest portfolio of cybersecurity patents, with a little over 2,500 families. Big Blue is closely followed by Microsoft and Samsung; while Canon, Intel and Google also feature prominently among the largest players in the space, the full list of which contains many of the world’s leading patent owners. But perhaps the biggest story from the new analysis is the growth of Chinese companies in the cybersecurity sector. Companies from the clountry [sic] take nine places in the top 25.

IAM refers to China as a “clountry” rather than a country. I guess some Chinese people would find that offensive. Are they “clowns” to this patent trolls’ lobby? Surely a typographical mistake, but still potentially amusing. As for the content, IBM and Microsoft pass software patents and money to patent trolls like Finjan which bully their rivals in the security space and are paying IAM for support (Finjan pays IAM, gets paid by Microsoft and Microsoft too pays IAM to promote the likes of Finjan). Are there any Microsoft competitors left (in the security space) that haven’t yet been blackmailed and/or sued by Finjan? Microsoft would likely exempt from such litigation only those who pay Microsoft ‘rents’ for “Azure IP Advantage”. That’s the ‘new’ Microsoft, selling ‘protection’ money. It did the same thing with SUSE 11.5 years ago.

“When will the patent office fully catch up with caselaw and stop facilitating these extortion rackets of companies like IBM and Microsoft, which carry on actively promoting software patents (as recently as last week)?”In other news, the following new article from the financial media speaks of a “Mystery Stock Surge”. This has nothing to do with patents however. Nevertheless, it reveals something about software patents of Dropbox, which could be an attractive litigation target for patent trolls after the IPO. Or maybe a plan to sell such patents in the future, offloading these to trolls?

A study from the intellectual property [sic] analytics firm Relecura notes that Dropbox holds a range of key intellectual properties, including patents to share files through a link and other ways that files interact with cloud applications. Its number of patent applications and acquisitions spiked in 2017, with the Relecura describing Dropbox’s portfolio as “highly focused” on two categories: data processing and transmission.

A handful of recent patents granted this week to Dropbox deal with syncing data with content management systems, an area that could be particular interest to a range of companies looking to build out capabilities in data management or data sharing.

These are clearly software patents, so why would examiners at the USPTO grant them after Alice? Why were software patents granted to Finjan? When will the patent office fully catch up with caselaw and stop facilitating these extortion rackets of companies like IBM and Microsoft, which carry on actively promoting software patents (as recently as last week)?

06.13.18

Buzzwords and Three-Letter Acronyms Still Abused by the EPO to Grant a Lot of Patents on Algorithms

Posted in Deception, Europe, Microsoft, Patents at 12:38 am by Dr. Roy Schestowitz

EPO examiners aren’t shy to admit this decline in patent quality and abrupt departure from the European Patent Convention (EPC) [1, 2]

EPO quality letter

Summary: Aided by Microsoft lobbying (with its very many patent trolls) as well as corrupt Battistelli, the push for software patenting under the guise of “artificial intelligence” (“AI”) carries on, boosted by Battistelli’s own “Pravda” (which he writes for), IAM Magazine

THE EPO and USPTO both use the buzzword (acronym) “AI” to go about granting software patents. Law firms and their clients are patenting software by consciously invoking this vague buzzword while EPO management sets up events to promote the practice (they also say “ICT”, “CII”, “4IR” and so forth).

This is not normal. It’s not acceptable. They are bypassing laws and misleading everyone. The latest example of software patents being disguised as “AI” to fool patent examiners is about a day old (a press release that says “FICO Awarded Seven New Patents for Analytic Innovations in Fraud Detection and AI,” then “FICO has been awarded seven new patents for fraud detection, AI and analytics”). FICO basically gets a bogus — i.e. likely invalid — monopoly on abstract ideas (courts would reject these patents), but unless PTAB receives a petition (IPR) FICO can engage in patent shakedown against rivals.

“FICO basically gets a bogus — i.e. likely invalid — monopoly on abstract ideas (courts would reject these patents), but unless PTAB received a petition (IPR) FICO can engage in patent shakedown against rivals.”This week’s Microsoft- and patent trolls-funded event of IAM also promotes software patents and here’s Microsoft doing its ‘share’ of the task, dubbing software patents “AI”.

“Microsoft’s Nicolas Schifano very clear on why much of AI is patentable,” IAM wrote (and there’s a photo there as well). There’s still not a word from them about Battistelli’s talk in support of software patents (using the latest buzzword); he was definitely there as scheduled. What’s noteworthy is that IAM is now legitimising the judge-bashing Watchtroll. They’re all in this together. A lobby of shame.

Unfortunately, words (or terms) like “AI” can be problematic even if examiners recognise these and throw away the papers (applications). Line managers, for example, can use Battistelli’s buzzwords du jour (e.g. “ICT”, “CII”, “4IR”) and then demand from patent clerks/examiners that they issue a patent/grant. The way things are going right now are profoundly depressing; the examiners are losing any pride associated with their job (work that is hard to replace because of exit conditions and the nature of contract they signed).

Yesterday we saw AA Thornton & Co’s Leonita Paulraj writing about the EPO’s patent assessment criteria, which are mostly overlooked/ignored by corrupt Battistelli (who only wants lots of grants in order to game the system). “In the recent past,” Paulraj wrote, “the EPO appears to have become more strict with the requirement of plausibility, and therefore it is advisable not to be in a hurry to file an application, especially in the fields of pharmaceuticals and biotechnology, without any clear evidence which supports that the invention has some technical advantages.”

She emphasises that it’s about pharmaceuticals and biotechnology way upfront:

This article considers how the EPO views the requirement of “plausibility”, which can arise during both the assessment of “sufficient disclosure” of the invention and “inventive step” in proceedings before the EPO, particularly in relation to inventions in the Pharmaceuticals and Life Sciences field.

The EPO Guidelines for Examination (EPO Part F-III, 12) state that if the claimed invention lacks reproducibility, this may become relevant under the requirements of sufficiency of disclosure or inventive step. If an invention lacks reproducibility because its desired technical effect as expressed in the claim is not achieved, this results in a lack of sufficient disclosure, which has to be objected to under Art. 83 EPC (sufficiency). Otherwise, i.e. if the technical effect is not expressed in the claim but is part of the problem to be solved, there is a problem of inventive step, which has to be objected under Art.56 EPC (inventive step).

[...]

The EPO has issued a number of decisions on plausibility, however, none of these decisions are conclusive. The question of plausibility is assessed by the EPO case by case.

From the decisions discussed above, it appears that even if a claim is non-obvious with respect to the prior art or in the absence of any prior art, the EPO could still refuse a case if it is not plausible at the date of filing that the invention does solve the problem it purports to solve.

Likewise, the requirement of sufficiency of disclosure must be met at the date of filing and if the application or patent is found later that it does not meet the requirement, it is no longer possible to correct this deficiency.

In the recent past, the EPO appears to have become more strict with the requirement of plausibility, and therefore it is advisable not to be in a hurry to file an application, especially in the fields of pharmaceuticals and biotechnology, without any clear evidence which supports that the invention has some technical advantages.

From what we can gather, based on what sources tell us, the EPC is being violated routinely in the domain of software, with people like Grant Philpott on top of this colossal failure. Software patents are nowadays being granted routinely by the EPO, often in defiance of examiners’ desires and sometimes in part due to buzzwords such as “AI”, “ICT”, “CII”, “4IR”. This is going to cause tremendous agony to Europe’s already-weak (compared to the US) software industry. The US is meanwhile removing many of these artificial barriers (Alice, which we shall cover in our next post, axes many software patents), spurring a boom in investment for software businesses.

06.09.18

A Post-TC Heartland (and Post-Alice) Patent System is Bad if Not Fatal News to Patent Trolls Like Microsoft’s Intellectual Ventures

Posted in America, Microsoft, Patents at 12:27 pm by Dr. Roy Schestowitz

Intellectual Ventures is connected to some Texas-based 'offspring' trolls

Microsoft and trolls

Summary: The gold rush for patents on algorithms (disguised as “AI” or “blockchain” among other hype waves which are being popularised nowadays) and why it’s going to be a lot harder to enforce these in the courtrooms now that the Eastern District of Texas is ever more isolated (recent rulings which deny ‘forum shopping’ or litigation venue hopping)

THE USPTO is improving (quality of patents). Patent courts in the US are improving (standards/bars). Innovation carries on. Patent litigation is declining (we shall cover that separately).

“We are pleased to see the way things are going and we receive online abuse from the aforementioned types, who are very angry because they’re used to making money from lawsuits.”Go to all (or virtually any) of those sites that tell us patents of any kind encourage innovation (any patent, even patents on life or algorithms). Check the background of the author/those quoted. It’s almost always lawyers with law degrees, i.e. the nontechnical types who make money from patenting and litigation. Did innovation suffer/stop because the US became tougher on patents? No. There’s no evidence of it. Did law firms earn less money? Probably. But they never produced any innovation anyway.

We are pleased to see the way things are going and we receive online abuse from the aforementioned types, who are very angry because they’re used to making money from lawsuits. They lose sleep over what’s going on.

“The trolls are struggling and quite a few have gone out of ‘business’ (when we say business we mean suing and engaging in extortion, as they do nothing else).”This post will focus on patent trolls, especially those that are exploiting lenient courts and now find it difficult to access those. We’ve been seeing nothing but good news on this front, except perhaps in Europe, where Samsung has just been extorted by a European patent troll.

The patent trolls’ lobby (IAM) currently celebrates Sisvel’s latest blackmail. Joff Wild says this:

The deals come on the back of other recent positive developments for Sisvel, including US litigation settlements with LG Electronics and Buffalo, which saw both companies agree royalty-bearing licences to the same Wi-Fi patents that Samsung now has access to; and Columbia University joining the Wi-Fi licensing programme, the first Ivy League university to do so. The programme now has over 100 licensees.

Sisvel began life in 1982 as a joint venture between Italian TV set manufacturers and now operates out of offices in the US, Europe and Asia, through which it offers a variety of pooled rights covering technologies, including wireless, digital display and audio/video coding. Its portfolio runs to thousands of patents – both managed on behalf of others, such as Fraunhofer, KPN and Orange, and acquired – with well over 1,000 licences in place.

Techrights wrote about Sisvel dozens of times in the past. They’re like Europe’s patent Mafia (and they happen to be Italian too, so maybe there’s a source of inspiration from the Italian Mafia).

“…AI is just software and in very few places in the world will such patents have real value (except outside the courts).”In the US, however, things have changed. The trolls are struggling and quite a few have gone out of ‘business’ (when we say business we mean suing and engaging in extortion, as they do nothing else). We have given many examples and we shall continue to give more. Several days ago we wrote about Intellectual Ventures losing a lot of money — mostly money that had been invested in it by Microsoft. Intellectual Ventures lost a lot of staff — managers and executives included — and Ericsson hired from Intellectual Ventures not too long ago (seeking trolling expertise).

As we covered here last week (owing to Docket Navigator’s coverage), Ericsson and Intellectual Venture now have a patent dispute between them and earlier today Watchtroll said more:

Ericsson Inc. v. Intellectual Ventures I, LLC, No. 2016-1671, 2018 (Fed. Cir. May 29, 2018) (Before Prost, C.J., Newman, and Wallach, J.) (Opinion for the court, Newman, J.) (Dissenting opinion, Wallach, J.)

The ‘408 patent, owned by Intellectual Ventures I LLC (“IV”), covers a method of frequency hopping used in wireless systems in which a base station communicates with other entities on varying radio frequencies to reduce interference among communications. Ericsson petitioned for inter partes review of the ’408 patent, and the PTAB upheld its validity. Without separately analyzing the challenged dependent claims, the PTAB held that claim 1 was not anticipated or obvious. On appeal, the Federal Circuit reversed with respect to claim 1 and vacated and remanded as to the remaining claims.

We expect the Federal Circuit to relay this back after the Patent Trial and Appeal Board (PTAB) found the patent ineligible. What will happen at the end? Well, in the meantime (amid all these court battles/motions) only the lawyers profit. Who loses? Both Intellectual Ventures and Ericsson, which itself feeds patent trolls and often acts like a troll itself.

“…patents on “AI” should therefore not be accepted (algorithms are abstract; they’re not patentable) and are not patent-eligible in the eyes of most courts worldwide.”In other news about Intellectual Ventures (Microsoft’s truly massive patent trolls network which likes to distribute its patents to thousands of other trolls), IAM indicates another gold rush for blockchain patents, i.e. software patents. An Intellectual Ventures ‘veterans’ is named:

The IP market officially has its first blockchain start-up. A group of executives with experience across patents and finance have launched a company called Operem, which will enable the tokenisation and trading of IP assets. Unveiling the new project exclusively to IAM, CEO Tim Londergan explained why his team believes the distributed ledger technology behind blockchain brings something radically new to the traditional IP exchange model.

[...]

Londergan, who spent eight years across several senior roles in Intellectual Ventures and more recently has been running a start-up incubator in Singapore, faces the challenge of building a business that combines two complex fields – IP and blockchain – which are often misunderstood by the uninitiated. But he thinks intellectual property, which Operem describes in a slide deck as “one of the last massively closed asset classes”, is ripe for disruption.

Remember that all of these patents are software patents. Mastercard too has been using the blockchain hype to disguise software patents as something patentable (courts would invalidate them). Here’s the latest on this:

Mastercard has won a patent for a travel itinerary system that uses a blockchain for a travel auction platform.

Consumers enter their planned itinerary and merchants submit bits for each request. The blockchain would connect travelers, travel agents, and other travel companies; along with a middle party that would vet the travel providers.The system could cut into travel providers’ marketing costs while making it easier for travelers to shop.

Mastercard is also pursuing patents for several other blockchain use cases, mostly with an eye on improving merchant and consumer navigation.

Over at a Japenese patents blog, Satoshi Watanabe takes note of so-called ‘FinTech’ patents (similar to the above) and starts by saying that “new technologies such as AI and IoT are progressing,” alluding to patents on these. Well, those are just buzzwords which are being exploted for bunk software patents (likely invalid). “As previously reported,” he wrote, “patent applications of business-related inventions have been on an increasing trend since 2011, and approximately 7,900 patent applications for business-related inventions were filed in 2016 (increase of 11.1% over the previous year), in spite of the downward trend in the number of domestic patent applications. Especially, patent applications in the financial sector (which should include FinTech) markedly increased in 2016 (increase of 40% over the previous year). The patent grant rate for business-related inventions is almost 70%. Therefore, many business-related patents have been generated in Japan.”

“Stop using meaningless old buzzwords to urge for patents on things that are clearly abstract.”Those are more like software patents, which are related in many ways to patents on business methods (both covered by Alice and to a lesser degree Bilski).

This new article relaying Withers & Rogers talking points (basically marketing for a law firm) speaks of an upcoming “event, which runs from 9-20 July 2018, featur[ing] patents in eight different categories from AI to software.”

Well, AI is just software and in very few places in the world will such patents have real value (except outside the courts). The “AI” buzzword is nowadays being promoted by the EPO and by IP Kat, which keeps painting software patents as “AI”, even as recently as a few days ago when it wrote: “DeepMind is a London based artificial intelligence (AI) research company, widely recognized as being at the forefront of the field. DeepMind was founded in 2010 and acquired by Google in 2014 for £400m. In 2017, DeepMind famously developed AI capable of defeating a world-champion at Go (Silver et al. Nature).”

The title of it was “DeepMind: First major AI patent filings revealed” and the sole comment says:

Just sounds like a company trying to pilfer all companies with patent trolls. All this will do is prevent AI from progressing because someone wants to make a $. AI should be banned from patent requests imo.

Well, it’s difficult to tell where these patents might end up. “AI” is just a vague term that applies to most algorithms; patents on “AI” should therefore not be accepted (algorithms are abstract; they’re not patentable) and are not patent-eligible in the eyes of most courts worldwide.

“In places like the Eastern District of Texas (E.D. Tex. or TXED) the judges might say “yes” to such patents, but not elsewhere.”Here goes another mindless tweet: “Should #AI created inventions be eligible for #patents? If so, the standards for what is considered patentable need to change…”

Stop using meaningless old buzzwords to urge for patents on things that are clearly abstract. In places like the Eastern District of Texas (E.D. Tex. or TXED) the judges might say “yes” to such patents, but not elsewhere. Therein lies the importance of TC Heartland, which very recently turned one.

“From “venue/forum shopping” we’ve meanwhile moved to “judge shopping”…”In an effort to keep abreast of TC Heartland and what goes on in the Eastern District of Texas we’ve found some interesting new developments. The court that is notorious for its patent trolls epidemic decided as follows: “The court granted defendant’s alternative motion to transfer for improper venue because defendant did not have a regular and established place of business in the district through its “necessary” distributor.”

This is basically another fight over interpretation of the Supreme Court’s ruling on TC Heartland. Quite a few such cases became public recently and Watchtroll wrote about one of them a couple of days ago:

In an opinion made public on May 9th, a federal judge in the Eastern District of Texas denied a motion to dismiss for improper venue. See Tinnus Enters. v. Telebrands Corp., Case No. 6:17-CV-00170-RWS (E.D. Tex. May 1, 2018). Notably, the Court in Tinnus found that a “regular and established place of business” can exist when a manufacturer or wholesaler leases a space within a brick-and-mortar retail store. Id. at 4-5.

District Judge Robert W. Schroeder supported the report and recommendation of Magistrate Judge John D. Love which found that defendant Telebrands consistently leases space with retailers in the district, creating ongoing, long-term relationships with those retailers. Id. at 4. Judge Schroder concluded that the defendant had crafted a regular and established place of business for patent venue purposes by holding out leased store space as their own, paying fees to construct the leased space, and controlling product placement, sales, and displays within that space. Id.

[...]

The Supreme Court’s recent decision in TC Heartland reset the definition of residency in § 1400(b), divorcing the patent venue statute’s construction from § 1391(c). TC Heartland LLC v. Kraft Foods Grp. Brands LLC, 137 S. Ct. 1514, 1520 (2017). In TC Heartland, the Supreme Court held that “residence” in § 1400(b) refers only to the state of incorporation, and further held that the expanded definition of “residence” in § 1391(c) was not intended to alter § 1400(b)’s construction of the term. Id.

As noted by Mark Deming yesterday, this is one among a “trio” of such cases: “The Federal Circuit issued a trio of decisions this month further clarifying the application of the patent venue statute in the post-TC Heartland era. The case specifics are: In re HTC Corporation, No. 2018-130 (May 9, 2018); In re ZTE (USA) Inc., No. 2018-113 (May 14, 2018); and In re BigCommerce, Inc., No. 2018-120 (May 15, 2018).”

“This means that companies like Microsoft, for instance, may struggle to float patent trolling (and selling ‘protection’) as a long-term business model.”From “venue/forum shopping” we’ve meanwhile moved to “judge shopping” — a practice which is considered rogue and regarded as serious misbehaviour based on the latest Docket Report:

Following a dismissal for failure to prosecute after six years of litigation, the court granted defendants’ motions for attorney fees under 35 U.S.C. § 285 because plaintiff’s litigation tactics were unreasonable.

This case, yet again, demonstrates that the attempts to pursue some particular judge or district are risky; these can now collapse or sink entire cases. The legacy of TC Heartland, including its ‘edge cases’ (like non-US companies), has aged pretty well. This means that companies like Microsoft, for instance, may struggle to float patent trolling (and selling ‘protection’) as a long-term business model. This is what Microsoft has been aiming for with “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19].

06.05.18

Microsoft’s Patent Trolls Continue to Attack Microsoft’s Rivals, Including These Companies’ Use of Free/Open Source Software

Posted in Deception, Free/Libre Software, GNU/Linux, Microsoft, Patents at 4:28 am by Dr. Roy Schestowitz

While Microsoft sells ‘protection’ (euphemistically named “Azure IP Advantage”) from itself and its patent trolls [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18]

Microsoft and trolls

Summary: While the media keeps obsessing over delusions like a ‘new’ Microsoft or “Microsoft loves Linux” the company carries on propping up patent trolls (which it then provides ‘protection’ from, but only if one chooses Azure) and threatening GNU/Linux OEMs, opting for the use the patents for bundling their ‘apps’ (an exchange along the lines of, “put our apps in Android or we’ll sue you”)

DO NOT for a single moment be misled by Microsoft’s latest charm offensive, which seems to have been timed so as to distract from Apple’s big announcements in an annual event. It would be spurious to tell our readers that Microsoft is not a friend of Free/Open Source software (FOSS). We spent about a decade writing about that; it’s a subject which we covered in literally thousands of posts. It’s worth noting that the new chief of GitHub will be the same person who infiltrated GNU/Linux through Novell with Mono, so these are entryism experts (he had moved between Microsoft and FOSS — jobs-wise — several times, along the lines of’a revolving doors’ model). Microsoft used Xamarin (which he was the chief of) to literally obliterate ‘dangerous’ (to Microsoft) FOSS projects like RoboVM before Microsoft ‘compensated’ them for the trouble (in the form of a takeover, i.e. money and cushy jobs/salaries). But this post isn’t about GitHub. Instead, let’s focus on patent news that’s connected to Microsoft. The TomTom lawsuit backfired in the media (even Jim Zemlin berated them for it) and ever since then Microsoft chose indirection. It’s hiding behind proxies such as SCO (but for patents, not copyrights).

“A lot of the money has been put into this patent troll by Microsoft and Bill Gates (at a personal capacity, too). They were willing to lose hundreds of millions of dollars just to prop up this troll.”A few days ago professor James Bessen (a patent trolls expert), via Brian J. Love (another scholar who is sceptical of the current patent law), highlighted this new article from the exceptionally Bill Gates-friendly Forbes. It’s about Intellectual Ventures (IV), Microsoft’s biggest patent troll which we’ve been tracking and reporting on for over a decade. “Self-proclaimed a new way of invention, patent troll IV has been a loser for its investors (& targets too),” Bessen remarked. A lot of the money has been put into this patent troll by Microsoft and Bill Gates (at a personal capacity, too). They were willing to lose hundreds of millions of dollars just to prop up this troll. It’s no ordinary troll but a massive network thereof. “After 10 Years,” notes Forbes, “Nathan Myhrvold’s $3 Billion Of Private Equity Funds Show Big Losses” (that’s the headline). Here are some excerpts:

Some 10 years ago, Nathan Myhrvold, the former chief technology officer of Microsoft, raised nearly $3 billion for two private equity funds from financial investors and tech companies. These were not your typical funds. They were designed to invest in patents and innovations, not companies or their securities, over a lifespan of 20 years, as opposed to the usual 10 to 13 years. Halfway through their run, the funds are deep in the red.

Invention Investment Fund II was the bigger fund that Myhrvold’s firm, Intellectual Ventures, raised in 2008. It has generated a -15.44% internal rate of return, according to data provided by the University of Texas Investment Management Co., one of Intellectual Ventures’ investors.

[...]

Nevertheless, Myhrvold has washed his hands of Invention Development Fund. It is now being managed by a new firm, Allied Inventors Management, which was set up solely to run Invention Development Fund outside of Intellectual Ventures. The fund has been renamed Allied Investors Fund. “The terms of the arrangement are subject to confidentiality agreement,” said DG Kim, Allied’s chief financial officer. “As far as internal fund matters, I am bound and can’t say anything really.”

We recently wrote about it because Microsoft had unintentionally revealed something. Filings showed that it was by far the biggest investor in this troll. It even lost a lot of money just trying to prop it up again (with another round of major investment). Richard Lloyd, who mentioned it at the time (Irish media actually broke the story), now has this new article stating that IV is “among the leading sellers of patents in first quarter” (IV sells patents to ‘satellite’ trolls that take many legal actions; the Wall Street Journal estimated about 9 years ago that IV had already created thousands of such ‘satellites’).

So what we have here is Microsoft’s patent troll (still led by Microsoft’s former CTO and heavily funded by Microsoft) distributing patents to patent trolls that are suing Microsoft’s rivals (including Linux companies, as we noted over the years). To quote:

IAM has teamed up with Allied Security Trust (AST) to provide quarterly updates on the secondary market for patents to determine who’s buying, who’s selling and what sort of assets are changing hands. As well as the data, AST has provided some additional information on the principal deals and the defensive aggregator’s CEO Russell Binns has added some commentary on the main trends. This analysis covers the first three months of 2018 and shows how Intellectual Ventures continues to dominate the market on the sell-side, while the NPEs Dominion Harbor and Uniloc are the leading buyers.

It’s also worth noting that IAM now works with the Allied Security Trust (AST), which is — as we last noted some weeks ago — like a patent ‘cartel’. IAM took note of another such ‘cartel’, IP Bridge, on the same day, writing:

Mobile network operator NTT Docomo has become the latest Japanese firm to partner with IP Bridge, the patent fund run by CEO Shigeharu Yoshii. A wireless-focused subsidiary of NTT, the world’s fourth largest telco by revenue, Docomo has previously made only limited patent transactions with third parties.

We wrote about IP Bridge. It’s almost like the ‘IV of Japan’, albeit much gentler. All these entities are basically participating in a large-scale ‘cartel’ whose de facto function is keeping small companies out of the market. They’re monopoly enablers.

“Microsoft did the same thing 3 years later at Nokia (Nokia’s patents will only ever bother Apple and Android OEMs, but never Microsoft).”That brings us back to Microsoft. And this time it’s about Yahoo’s trove of software patents. Well, just as many people worried at the time (10 years ago, the time of Microsoft’s hijack of Yahoo), USPTO-granted patents of Yahoo show up in lawsuits/dockets. Critics like ourselves predicted that these patents would get scattered to trolls that target Microsoft’s main competitors on the Internet while Microsoft gets to shield itself by wielding leverage over Yahoo. Microsoft did the same thing 3 years later at Nokia (Nokia’s patents will only ever bother Apple and Android OEMs, but never Microsoft).

According to the EFF’s Daniel Nazer: “Old @Yahoo patents now in the hands of trolls. Prolific patent troll IP Edge has sued @Twitter claiming it infringes this software patent: https://patents.google.com/patent/US8352854 …”

We wrote about IP Edge several times earlier this year, e.g. [1, 2, 3, 4; like IV, it typically operates through ‘satellites’ which file the lawsuits. This makes it incredibly hard to keep track of these things; it’s hard to know who’s behind which lawsuit/s.

Daniel Nazer has just published this new article titled “EFF Fights for Public Access To Patent Disputes” because even the EFF struggles to gain access to such crucial information. To quote:

The public can’t judge if courts are fair if the public is locked out. The parties generally don’t care if the proceedings are hidden (indeed, they may want them hidden). This means that, at times, groups like EFF and press organizations have had to stand up for public access. Unfortunately, while the First Amendment protects the right of access, courts sometimes fail to protect this right.

In patent litigation, we’ve seen routine over-sealing by busy district courts. EFF has twice moved to unseal records in patent cases in the Eastern District of Texas, and both times the court unsealed material that should have been public.

Now EFF is taking action to push for transparency in two critical venues for hearing patent disputes. We’re protesting against the Federal Circuit’s practice of delaying the public from reading filed briefs, and the Patent Trial and Appeal Board’s use of secret docket entries.

[...]

The Patent Trial and Appeal Board (PTAB) overseas a variety of important procedures within the Patent Office, including inter partes review (IPR) and administrative appeals. The IPR proceedings, in particular, are now one of the most important methods for challenging bad patents.

Recently, we filed an amicus brief at the PTAB in a case considering whether a patent owner can avoid review by claiming sovereign immunity. As part of our work in that case, we discovered that when documents are filed under seal at the PTAB there is no public docket entry. So, not only does the public not get to see the sealed document, it doesn’t even know that one has been filed.

We sent a FOIA request to the Patent Office that, in effect, asked for all non-public docket entries in post-grant proceedings at the PTAB. We did not request the filings themselves but only the docket entries. After some back-and-forth, the Patent Office produced a list [PDF] of 16,773 docket entries (we thank the FOIA Officer who helped with this process). In other words, there have thousands of filings before the PTAB that the public had no record of.

Meanwhile, as Nazer noted in Twitter yesterday:

U.S. Patent No. 10,000,000 will likely issue some time this month. To make sure the publicity is good, the USPTO will hand-pick this patent (it won’t be the patent that randomly would have gotten that number).

Far too many ‘inventions’ so you just know that the vast majority simply aren’t inventions and are basically bogus patents waiting to be exploited en masse by patent trolls. Many such trolls are connected to Microsoft, either directly or through IV (which has literally thousands of them). How large a scale does this network of trolling have? It’s hard to tell unless the EFF can compel/press for better public access to information. Many patent disputes happen secretly, with conditional settlements that include “no disclosure” agreements (NDAs). Secrecy shelters serial bullies from regulators/scrutiny/challenge (such as IPRs at the Patent Trial and Appeal Board).

06.01.18

Three Years After Openwashing Its Patents Panasonic Gives These Patents to Patent Trolls

Posted in Deception, Microsoft, Novell, Patents, Red Hat at 1:06 am by Dr. Roy Schestowitz

A reminder of how worthless and futile patent pledges can be in practice

Panasonic

Summary: Panasonic has begun feeding large patent trolls and a Microsoft-connected law firm frames the victims of Microsoft’s patent trolls as the principal threat, not the trolls themselves

REMEMBER Novell’s promises regarding patents? Well, Microsoft has those patents now (they’re under CPTN). What about Red Hat, which claims to have established a patent “standstill” with Microsoft?

“Basically, all those patent pledges or promises are worthless; they’re a way of keeping one’s cake while eating it in the back room.”Well, Red Hat is still pursuing actual software patents at the USPTO. What does that tell us about Red Hat? Truth be told, the only way to ensure these patents don’t pose a danger is to altogether eliminate them, not make some pledges (mere words on paper that can be thrown away in case of a takeover, even if not especially a hostile takeover). Basically, all those patent pledges or promises are worthless; they’re a way of keeping one’s cake while eating it in the back room. They reserve the right to pass such patents around.

Not too long ago Panasonic was openwashing its patents. We were highly sceptical of Panasonic at the time and very critical of all the media which repeated the claims from Panasonic. It turns out that we were right because Panasonic finally gives a lot of these to patent trolls. Re-armament by Canada’s truly massive patent troll WiLAN has just been reported in this press release; the patents are handed over to a subsidiary (proxy) of the troll:

Wi-LAN Inc. (“WiLAN”), a Quarterhill Inc.(“Quarterhill”) company (TSX: QTRH) (NASDAQ: QTRH), today announced that its wholly-owned subsidiary, Security Video Camera Systems, Inc., has acquired a portfolio of patents from Panasonic Corporation (“Panasonic”). The portfolio contains 34 patent families comprising 96 patents worldwide. The acquisition was made under WiLAN’s partnership program which features the sharing of revenues generated from a licensing program.

We wrote about Wi-LAN last month; Canada needs to get these thugs under control.

Meanwhile, as per this Microsoft-connected firm (Shook, Hardy & Bacon L.L.P. is the firm of Microsoft’s former patent chief), “Cloud Cybersecurity Solutions Under Siege From Patents, Again: Cybersecurity Companies Protect Customers From Malicious Attacks, But Can They Protect Themselves?”

Jonathan Barnard writes (at the very end):

Regardless of the outcome in this case, the question still remains–while companies like Symantec and Trend Micro continue to protect their customers from malicious cloud-based cyber-attacks, can they protect themselves from the continued onslaught of competitor-based lawsuits? Trend Micro may have an “easier” time protecting its cybersecurity solutions and IP as it’s currently only facing patent infringement litigation on one front from CUPP. The task may prove more difficult for cybersecurity giant Symantec however, since in addition to playing defense in a patent infringement lawsuit against Finjan, it’s also playing offense by enforcing several of its own web security, threat prevention, and antivirus patents against other cybersecurity competitors like Zscaler.

Funny how this Microsoft-connected firm neglects to mention the Microsoft-funded patent troll Finjan (in the same space, security) until the very end. They make some of the victims of this troll (i.e. companies that actually make something) seem like the biggest risk. Isn’t that an odd reversal? A self-serving one for sure…

05.31.18

The EPO’s Lobbying Chief Apparently Came From Saint-Germain-en-Laye 2 Years After Benoît Battistelli

Posted in Europe, Microsoft, Patents at 11:34 pm by Dr. Roy Schestowitz

EPO FIFA-approved graphic

Summary: French influx in EPO leadership (what some readers call “the metastasis” of “cancer” Battistelli) is being noticed also in the Brussels Bureau

THE nepotistical nature of hirings at the EPO has become so routine that it’s banal. It’s no coincidence that so many managers and key consultants are French; many are former colleagues of the nepotist in chief, Battistelli, sometimes their relatives too. It’s like the “Mafia model” (hiring within the family or one’s trusted circles).

Recently we’ve been taking about the millions of euros (EPO budget) that are set aside as money for Saint-Germain-en-Laye. Battistelli’s theatre (that he’s in charge of) is about to be drowned in EPO cash. Did they teach courses at ENA on how to pass money from one employer to another?

In the meantime, readers have taken note of Anne-Sophie de Brancion’s background, which she publicly discloses in Microsoft’s site, LinkedIn. 2 years after Battistelli became EPO President she became the chief lobbyist of the Office (“Head of Brussels Bureau” even). She studied at Lycée international de Saint-Germain-en-Laye and Institut d’Etudes politiques de Paris, where she specialised in “EU Lobbying” (2000 – 2005). “Look [and] guess where this EPO lobbyist has studied,” one reader told us, “coincidence or not?”

“Battistelli’s theatre (that he’s in charge of) is about to be drowned in EPO cash.”We’re still investigating whether there’s some connection other than Saint-Germain-en-Laye (maybe family, former colleagues etc.) though it’s worth noting that she attended the software patents lobbying event this week. “Back in Brussels after fascinating #PatentingAI conference with lots of new thoughts and questions on my mind,” she wrote about this charade of the EPO.

Speaking of past connections, the EPO has just stated that: “The Official Journal 5/2018 is now available online” (at the EPO’s Web site).

Here’s the direct link (warning: epo.org link) to the page and to the PDF (warning: epo.org link). Remember that the previous one was basically spam of Battistelli's next employer and the current one of António Campinos. In this current one they’re asking for submission in Microsoft Word’s proprietary format, then noting “If a filed document is infected with a computer virus or contains other malicious software, it will be deemed to be illegible. The office is not obliged to receive, open or process any document with such a deficiency.”

This is a hallmark of Microsoft Office. We already wrote many articles about the relationship between Microsoft and the EPO. Back then we also wrote about the EPO’s activities in Brussels.

05.28.18

Microsoft and Its Patent Trolls Face an Uphill Battle in a Patent System Which is Increasingly Hostile Towards Software Patents

Posted in GNU/Linux, Microsoft, Patents at 10:17 am by Dr. Roy Schestowitz

An unusual dumper

Summary: The huge number of shells (trolls) that are connected directly and indirectly to Microsoft are struggling in the age of PTAB and 35 U.S.C. § 101; but that does not mean that we should take our eyes off them (and their proponents)

Microsoft, the company which “loves Linux” so much that it sees the need to create cheesy memes about it and then paste them like a million times all around the World Wide Web, relies on patents granted by the USPTO to sue companies which distribute GNU/Linux. Apple does the same thing. Microsoft typically does this through patent trolls, some of which are based in the Eastern District of Texas, the capital of patent trolls. Some are based elsewhere, e.g. Acacia, and they have a cluster of shell entities (making it incredibly hard to keep track of, just as they intended).

Having spent about a dozen years researching these trolls and their connections, we’re a little harder (than most) to fool. 5 days ago Unified Patents wrote about its petition against Acacia, a Microsoft-connected patent troll (which attacks GNU/Linux vendors). Remember that Acacia had hired for its management from Microsoft just before it sued companies like Red Hat and Novell. Here is what Unified Patents wrote:

On May 23, 2018, the Patent Trial and Appeal Board (PTAB) instituted trial on all challenged claims in an IPR filed by Unified against U.S. Patent 8,902,770 owned and asserted by Cellular Communications Equipment, an Acacia subsidiary and well-known NPE. The ’770 patent, directed to a method for “explicit signaling between a network and the user equipment,” has been asserted in district litigation against such companies as Apple, ZTE, AT&T, Verizon, Sprint, Boost Mobile, and T-Mobile.

Acacia is still around unfortunately; it’s also active. The above names one of its many shells, “Cellular Communications Equipment” (it would be hard to know this connection without some research). Watch out for another shell called “PanOptis” because “Sony transfers over 100 US patents to NPE PanOptis,” IAM notes, linking to its article which in turn links PanOptis to other trolls, such as Avanci (mentioned here more recently again). To quote: “Recent USPTO records show that Sony has transferred a portfolio of over one hundred US patents to an affiliate of NPE PanOptis, a part of the Marconi Group. The Japanese company already participates in the Avanci and Velos patent pools, and its link-up with PanOptis underlines Marconi’s diverse offering. Sony assigned 135 US patent rights to Plano-based Wi-Fi One LLC on 26th January, but the transaction was not recorded until last month. Wi-Fi One is just one of the vehicles controlled by PanOptis, the NPE founded by Leslie Ware which became part of the Marconi Group in February 2017.”

Wi-Fi One is another patent troll which we wrote many articles about (in recent months). Notice the trend; large companies like Sony, which shares investments with Microsoft in several patent cartels (e.g. Rockstar Consortium and Intellectual Ventures), spread patents to trolls. As for Avanci (Ericsson-connected, also part of Rockstar Consortium, along with Apple and BlackBerry), IAM says that its “auto royalty fee [on many Linux-powered systems] will be $3 to $15 per vehicle no matter how many patent owners sign up to our auto platform, the firm confirms to IAM.”

The underlying article (not behind paywall for a change) says more:

There will be no changes to the $3 to $15 per car royalty fees licensees are asked to pay to access the patents that form the Avanci auto patent platform, the firm has told IAM. “As we add new patent owners to the Avanci platform, the price the licensees pay for a licence will not increase,” Luke McLeroy, vice president of business development, said. “In fact, after publishing our rates in December of 2017, Avanci added four patent owners to the platform and the price didn’t increase. This is the case even if all standard essential patent owners join the platform.”

[...]

Each of the manufacturers that Avanci is talking to, said McLeroy, “is on its own journey in determining how wireless can be implemented within their respective products”. He continued: “Within this journey, there are different stages of understanding on how the licensing process works in the telecommunications space vs the automotive industry and it takes time to find that common ground where a licence can be taken.”

These patents are all rather dodgy, but put together in a pool (like that of MPEG-LA) it’s far too expensive to challenge them all. A combination of many dubious patents in large numbers (quantity) is how Microsoft typically blackmails Android and GNU/Linux/ChromeOS OEMs. Sometimes it’s not even Microsoft doing the blackmail (not directly anyway). Microsoft can always rely on its special patent troll, Intellectual Ventures, to do the lawsuit or pass patents to one of its thousands of shells to do that. It’s one heck of a racket!

Mr. Gross has this new update about the Patent Trial and Appeal Board’s (PTAB) ruling on litigation ‘ventures’ of Intellectual Ventures: “have no idea what IV patent attys were thinking appealing this patent case to PTAB; subject matter (“selling insurance policies,””funding at least one of purchase…””inducing water temperature changes”) just invites a beating with 101 stick over head: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016005828-05-07-2018-1 …”

He’s referring to Section 101 (Alice). It always gets them. Here’s one of Microsoft’s: “MSFT wins rare [Section] 101 case at PTAB for utterance clustering based on Mcro: “process performed by human animators is not the same as that as the rules-based process recited in the claimed automation, as the human process is driven by subjective determinations” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010766-05-08-2018-1 …”

Another PTAB case, Hakkani-Tur, speaks of “rejection of all twenty pending claims in U.S. Application No. 14/846,486, for which the real party in interest is Microsoft. [...] The claims had been rejected under 35 U.S.C. § 101…”

Here’s the relevant bunch of passages:

In a decision issued earlier this month, the U.S. Patent and Trademark Office Patent Trial and Appeal Board reversed the final rejection of all twenty pending claims in U.S. Application No. 14/846,486, for which the real party in interest is Microsoft. The claims at issue are directed to a system that trains a spoken language understanding (SLU) classifier based on user intent gleaned from user utterances (i.e., spoken natural language sentences and phrases, such as “send Mom an email”). In particular, the claimed invention involves collecting a variety of user utterances and semantically parsing the utterances (i.e., mapping the utterances into machine-understandable representations of their respective meanings) to generate a single graph that represents all the utterances in the form of nodes. The claimed invention then involves clustering (i.e., grouping) the utterances by similar user intent, and using the resulting groups to train the SLU classifier.

[...]

But the Board disagreed with the Examiner on all three points. The Board was quick to note that, although the portions of App. No. 14/846,486 cited by the Examiner might describe mathematical calculations, they do not discuss an SLU classifier, but rather discuss a method of developing the graph used to train the SLU classifier. In addition, the Board stated that the last two steps of claim 1 are more than just field of use limitations.

Does this mean that PTAB can impact Microsoft’s (patent) war on GNU/Linux?

Mr. Gross goes on and on with Section 101. He wrote: “PTAB says Bilski ONLY applies to process claims: MOT test “applies to claimed processes-a category of subject matter under § 101 that is distinct from the dynamic messaging system recited in claim 1 that falls within the apparatus category in that statute” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002826-05-07-2018-1 …” and then this:

PTAB invents new standard for §101 implying that “something more than the abstract idea” Alice part 2 test cat be met UNLESS there is an improvement to “the technical field of computers, communications, networking, or otherwise.” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017002116-05-14-2018-1 … NO SUCH PRECEDENT EXISTS!

Mr. Gross has long attacked PTAB and wrote for Web sites of patent trolls. An online buddy of his said: “The PTAB Reversed the Examiner’s 101/Mayo and 103 Rejections of Claims in a Medtronic Patent Application Directed to Improving Bladder Function: https://anticipat.com/pdf/2018-05-01_13764911_178530.pdf …”

This is very rare a thing. This is why it’s being pointed out. It’s like all those times the patent maximalists name-drop Berkheimer as if it’s the only court decision that matters. Berkheimer was overhyped nonsense from the patent microcosm, which merely hoped that by 'pulling a Berkheimer' 24/7 there would be renewed interest in software patents. Here goes Mr. Gross again: “PTAB already skirting most of CAFC Berkheimer ruling: “Appellants’ Specification teaches …that the processes, and steps of the invention, may be realized” using hardware that “may include a general purpose computer and/or dedicated computing device” https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2016004156-05-01-2018-1 …”

They’re leaving Berkheimer behind, unlike Mr. Iancu.

Lawrence Ashery of Caesar, Rivise, Bernstein, Cohen & Pokotilow has meanwhile published this long piece in support of software patents, relying solely on Berkheimer and a muchly-mesmerised (by it) Iancu. Media of law firms basically pretends that the goal should be to allow software patenting and it also overplays Berkheimer, as expected (marketing, lobbying, not advice). To quote some bits:

Then, an interesting court opinion was published in February (Berkheimer v. HP, 17-1437 (Fed. Cir. 2018)). Steven Berkheimer had sued Hewlett-Packard (HP) for infringing his patent for digitally processing and archiving files. The district court ruled that Berkheimer’s patent was invalid, because it was directed to patent-ineligible subject matter. Specifically, the court stated that Berkheimer’s inventive concept failed the second step of the Alice test because his invention related to “steps that employ only well understood, routine, and conventional computer functions.” On appeal, Berkheimer argued that whether an invention is “well understood, routine and conventional is an underlying fact question for which HP offered no evidence.” The U.S. Court of Appeals for the Federal Circuit agreed with Berkheimer, and remanded the case to the district court so that the necessary factual determination could be made.

Berkheimer v HP was also brought up by the PTAB-hostile Anticipat 5 days ago. “Expect the Berkheimer-driven patent-eligibility pendulum to swing at the PTAB,” said the headline, but no, not really. Months down the line nothing has really changed. Here is what Anticipat wrote:

The past few months have seen huge developments in patent-eligibility at the USPTO. In three and a half years after Alice, the most effective way to argue against patent-eligibility for software applications was to focus on Step 1–that the claims are not directed to an abstract idea. But based on these recent developments, Step 2–that additional elements of the claims transform the judicial exception into something more–looks to be the more powerful way. The only problem is that the PTAB has not yet caught on. It will.

These huge developments have taken place in the form of Federal Circuit decisions deciding patent-eligibility favorably to the patentee, especially Berkheimer v. HP Inc., 881 F.3d 1360, 1369 (Fed. Cir. 2018). Such a clear articulation of the need for factual findings for Step 2 should usher in big change in how the Alice/Mayo framework is applied.

Anticipat uses the phrase “huge developments” twice, but Berkheimer was hardly that. Oil States was. Then again, what can be expected from a firm whose sole goal and business model is PTAB-bashing?

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