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08.16.18

USPTO Craziness: Changing Rules to Punish PTAB Petitioners and Reward Microsoft for Corruption at ISO

Posted in America, ISO, Microsoft, Open XML, Patents at 7:22 am by Dr. Roy Schestowitz

Mr. Iancu and his colleagues do not appear to understand (or care) that they are rewarding Microsoft for epic corruption at ISO and elsewhere

No-OOXML

Summary: The US patent office proposes charging/imposing on applicants that are not customers of Microsoft a penalty; there’s also an overtly and blatantly malicious move whose purpose is to discourage petitions against wrongly-granted (by the USPTO) patents

THE previous post spoke about how the Federal Circuit rejects software patents, as does the Patent Trial and Appeal Board (PTAB). An inter partes review (IPR) is almost guaranteed to thwart any software patent if it is applied to one (not a cheap process, but a lot more affordable than a court battle, which can only be initiated by patent holders).

“Iancu was a pick of the notoriously corrupt Trump, whose firm had previously worked for Trump. Coincidence?”It is no secret that Director Iancu wrote articles in support of software patents and software patents are not valid anymore, based on what the SCOTUS has decided. This means that the person whom Trump put in charge of the patent office in inherently is disagreement with patent courts. An untenable situation? Iancu was a pick of the notoriously corrupt Trump, whose firm had previously worked for Trump. Coincidence?

Either way, everything we have seen so far confirms our worst fears — that Iancu would work for the patent microcosm rather than for science and technology. The patent system was conceived to serve that latter group, not a bunch of lawyers, but things have changed since conception and nowadays the Office is adding yet more fees that make expensive lawyers a must to some. With prohibitive costs, too (maybe $200 per hour). Punishing poor companies, obviously.

Docket Navigator has been covering quite a few 35 U.S.C. § 285 cases/motions lately, with some being successful, i.e. when some troll or bully made bogus claims it was punished financially for it. Those are the courts doing so, not the Office. In Phigenix, Inc. v Genentech, Inc. (based on this latest Docket Report), the court ended up considering the argument regarding frivolous patent lawsuits. Will the court make it more expensive to the abuser? That remains to be seen. “Following summary judgment,” Docket Navigator wrote, “the court granted defendant’s motion to join plaintiff’s founder/inventor as a necessary party and pursue attorney fees against him under 35 U.S.C. § 285.”

Upcoming changes at the USPTO do not look promising however. For at least three reasons.

Firstly, the patent microcosm is being shielded from competition. “It is no secret to anyone in the industry; the unauthorized practice of law is rampant, and OED does nothing to stop it,” Gene Quinn (Watchtroll) said yesterday. Terms like “unauthorized practice of law” (used both in the body and headline of Watchtroll) imply that it’s illegal to represent oneself too. The patent and litigation ‘industries’ want a monopoly on this activity. A form of corruption surely? Consider Iancu’s professional background and how he might view this.

Secondly, this Trump appointee would have loved to abolish PTAB and destroy patent quality, but SCOTUS and CAFC are not allowing that to happen. He’ll still try though. He might even ignore Oil States and try to just price IPRs out of reach. Here’s what Kevin E. Noonan, a patent maximalist, wrote a couple of days ago

On August 8th, the U.S. Patent and Trademark Office issued revisions to its Patent Trial and Appeal Board (PTAB) Guide (see “Trial Practice Guide Update”), first promulgated in 2012 as part of the Office’s implementation of inter partes review (IPR), post-grant review (PGR), and covered business methods review (CBM) proceedings established under the Leahy-Smith America Invents Act (AIA). As discussed in an accompanying memorandum from USPTO Director Iancu, this update is part of the Office’s plan to issue updates periodically, on section-by-section, rolling basis; the Director anticipates further future updates “to take into account feedback received from stakeholders, changes in controlling precedent or applicable regulations, or the further refinement of the Board’s practices over time.”

In addition to being a resource for petitioners and patent owners, the Guide has as its purpose “to encourage consistency of procedures among panels of the Board,” akin to the role of the MPEP with examiners. As with the practice of having “expanded panels” to promote consistency in decisions, this function further limits the extent to which APJ’s activities are consistent with an independent adjudicatory arm of the USPTO.

It’s just a pretext for price hikes, as Michael Loney noted in a couple of articles. The first one spoke of changes to the process:

AIA Trial Practice Guide changes attracting the most attention are patent owners getting sur-replies and the opportunity to present a brief sur-rebuttal at the oral hearing, giving them the final word in PTAB proceedings

That should not take long, should it?

Thirdly, and finally, there is the most ridiculous thing of all. The USPTO will apparently punish people for using non-Microsoft binary (OOXML) format. How is this not corruption at USPTO? Microsoft used corruption to impose OOXML on the world, now USPTO punishes those who use standards! OOXML is not really a standard; it has binary blobs in it and Microsoft bribed officials and delegates for it. Here are the details:

The USPTO is seeking across-the-board fee increases, as well as a new fee surcharge for filing in a non-DOCX format and an annual active patent practitioner fee

So they are making it more expensive yet again (25%) in an effort to suppress IPRs. Battistelli used the same tricks as Iancu. He kept raising the costs of appeals (against bogus patents) in an effort to reduce patent quality and hide all this.

Iancu’s proposed fee hikes for PTAB IPRs obviously harm small businesses the most. Who benefits? Microsoft. Who else benefits? Lawyers. But that pretty much sums up what this leadership became, even in direct defiance of US courts as high as the Supreme Court. We hope that these proposals will be imminently challenged.

The Demise of US Software Patents Continues at the Federal Circuit

Posted in America, Courtroom, Patents at 6:12 am by Dr. Roy Schestowitz

Courts decline and the judiciary rejects such patents, leading to a decline in such patent grants as well

A decline

Summary: Software patents are rotting away in the United States; it remains to be seen when the U.S. Patent and Trademark Office (USPTO) will truly/fully honour 35 U.S.C. § 101 and stop granting such patents

THE situation in 2018 is probably worse for software patents than it has ever been (except before such patents were introduced, a few decades after software itself had emerged). The Federal Circuit continues to affirm inter partes reviews (IPRs) undertaken by the Patent Trial and Appeal Board (PTAB) at the USPTO in (re)assessing software patents, so why does the USPTO still grant any such patents? That merely harms confidence is US patents and collectively reduces their value.

“That merely harms confidence is US patents and collectively reduces their value.”As we often note here, the USPTO continues granting far too many abstract patents because of tricks like calling these “apparatus” (examples from yesterday) and buzzwords like “AI”. In spite of knowing courts would void these, examiners let them be. See this day-old survey of newly-granted patents; many of them sound very abstract and here's why they're still being granted. There’s more money in granting than in rejecting, but what would be the fate of the office if it kept granting patents only for them to be rendered invalid later?

“it seems like CAFC is pretty consistent in such rulings and it’s therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy.”In the United States’ patent courts — not Office (PTO) — software patents are pretty much dead, but it’s expensive to show this. Invalidation rates are already very high (if it gets to district courts and/or PTAB) and if one is wealthy enough, then CAFC offers even higher invalidation rates for software patents. It’s about access to justice. All about money. It’s just better for the rich, deep-pocketed firms. That in its own right is a profound issue.

In any case, there’s some good news this week as CAFC decides to throw another bunch of software patents by the wayside. Dennis Crouch has mentioned a Microsoft case, Enfish, in relation to this. The patents are on database software (they’re inherently a kind of software and the same goes for blockchains) and as one might expect these too are bunk. CAFC agrees as usual. Quoting Crouch:

On appeal here, the Federal Circuit affirms a lower court ruling that the claims of BSG’s three asserted patents are invalid as ineligible under 35 U..S.C. § 101. U.S. Patent Nos. 6,035,294, 6,243,699, and 6,195,652.

The claims relate to indexing a database according to “relative historical usage information.” Thus, in an automobile database with a “model” parameter, the system could display index by the popularity of the various models. In the claims, the popularity is measured by prior users of the system. Note here – the claims don’t technically require indexing by the frequency, only being able to access that information.

[...]

Enfish was a similar case — also involving a self-referential database structure. That case, the court determined that the focus was on database function and machine efficiency. Here, on the other hand, the historical information is stored just like any other data. “The claims do not recite any improvement to the way in which such databases store or organize information analogous to the self-referential table in Enfish or the adaptable memory caches in Visual Memory.”

This is fantastic news for software developers who wish to develop in peace without nuisance patent lawsuits.

Patent maximalist [1, 2] Matthew Bultman (Law360) wrote about these patents being invalidated at around the same time. To quote:

The Federal Circuit on Wednesday ruled three indexing software patents that BuySeasons Inc. was accused of infringing are invalid for claiming nothing more than an abstract idea, upholding a ruling from a judge in the Eastern District of Texas.

The appeals court, in a precedential opinion, found U.S. District Judge Robert Schroeder III correctly granted BuySeasons summary judgment that each of the asserted claims in Plano, Texas-based BSG Tech LLC’s patents are invalid.

They tried Texas, as usual.

Bultman’s Law360 colleague, RJ Vogt, wrote about another case, one filed by Mirror Worlds Technologies LLC, probably not even a real company based on its registration. To quote Law360‘s article:

A New York federal judge has ruled that Mirror Worlds Technologies LLC failed to show that Facebook Inc. infringed three of its patents covering digital data organization technology, finding that the social media giant’s news feed and other features did not use a “main stream” as described by the patents.

The patents, issued between 1999 and 2012, protect the “Scopeware” system for file sharing, which organizes emails, documents, calendar items, software and other data into searchable chronological streams designed to replace traditional “desktop” folder interfaces that…

Finally, yesterday in PR Newswire (a press release by Diebold Nixdorf) CAFC was said to have voided another bogus patent granted by the USPTO:

Diebold Nixdorf (NYSE: DBD) announced today that the U.S. Court of Appeals for the Federal Circuit reversed the decision issued by the International Trade Commission (ITC) against the company in a patent dispute against Nautilus Hyosung. The Federal Circuit agreed with Diebold Nixdorf that Hyosung’s sole remaining patent in its case against the company is invalid and unenforceable. The Federal Circuit’s decision is a victory for the company, reversing the judgment of the ITC that Hyosung’s patent was valid and infringed by Diebold Nixdorf.

The patent found to be invalid, U.S. Patent No. 8,523,235, relates to certain automated teller machines (ATMs) with Diebold Nixdorf’s ActivMedia™ module. The underlying investigation at the ITC began with four patents, but Hyosung dismissed three of the patents after Diebold Nixdorf provided evidence that Hyosung had simply copied technology that had already been introduced by Diebold Nixdorf and other prominent manufacturers.

[...]

In that first ITC Investigation, the administrative law judge found that nearly all of Hyosung’s deposit automation-enabled ATMs and modules infringe two Diebold Nixdorf patents. In fact, the administrative law judge specifically noted evidence showing that “Nautilus had knowledge of Diebold’s patented technology, copied it, and encouraged its customers to use it in an infringing way.” Diebold Nixdorf intends to seek damages in a jury trial in U.S. District Court for Hyosung’s infringement.

Notice the trend. Also notice what the ITC had done before CAFC got involved.

We’ve not cherry-picking cases here; it seems like CAFC is pretty consistent in such rulings and it’s therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy.

Almost Two Months After the ILO Ruling Staff Representative Brumme is Finally Back on the Job at EPO

Posted in Europe, Patents at 5:04 am by Dr. Roy Schestowitz

A photo of Ion Brumme

Summary: Ion Brumme (above) gets his position at the EPO back, owing to the Administrative Tribunal of the International Labour Organization (ILO-AT) ruling back in July; things, however, aren’t rosy for the Office as a whole

THE EPO‘s peculiar affairs with justice go quite some while back. Things culminated in early 2015 when the EPO’s management refused to obey a Dutch court’s ruling regarding SUEPO. Aside from that, the EPO had become notorious for its kangaroo courts — a staged notion of justice (or mere ‘theatre’) as later confirmed by ILO-AT.

“Even a petition regarding patent quality needed to be made anonymous and it did not receive sufficient press coverage (not as much as it deserved anyway).”Well, belatedly (as was the case with Judge Corcoron) the EPO is complying with court rulings from ILO-AT. It is “better late than never,” the saying goes, but they had to eventually do it, even cursorily, otherwise it would count as eternal contempt of the courts.

IPPro Patents wrote about Ion Brumme, naming Aurélien Pétiaud, Michael Lund, Laurent Prunier and Elizabeth Hardon. If someone can pass to us the full message from Brumme, that would be appreciated. The article contains many fragments from it, but not the original in its entirety. To quote a couple of portions:

European Patent Office (EPO) president António Campinos must “give back the staff their voice”, according to Ion Brumme, chairman of the Staff Union of the EPO (SUEPO) Munich section.

Brumme was speaking in a message circulated to SUEPO on the day (15 August) he returned to active duty at the EPO following his dismissal two and a half years ago.

In the message Brumme revealed he had returned to the office after the International Labour Organisation (ILO) exonerated him and his colleague Malika Weaver.

Brumme specifically addressed Campinos, asking him to “stop the persecutions of union officials and staff representatives”.

“Some are still undergoing unnecessary disciplinary procedures and ILO complaints. You can put an end to this chapter. Give back the staff their voice, their pride and their dignity.”

[...]

“At present, the staff representation still has a number of staff representative casualties such as Aurélien Pétiaud, Michael Lund, Laurent Prunier and Elizabeth Hardon. One, in particular, is Laurent Prunier, who has been dismissed in The Hague. He is awaiting trial in front of the ILO.”

“I would like to ask all of you to stop supporting me financially and if you want start supporting Laurent instead. He is in a far more precarious position than me.”

It might be too late to save the Office. ILO, the European Parliament etc. failed to act on time and union-busting goes more than 3 years back. It left the staff oppressed and unable to speak. Even a petition regarding patent quality needed to be made anonymous and it did not receive sufficient press coverage (not as much as it deserved anyway). That’s how bad things became.

Oppositions at the EPO went through the roof, but some (like IAM) are trying to spin that and yesterday Managing IP (a UPC and Battistelli proponent) said:

Data published by Haseltine Lake reveals trends in European patent oppositions in 2017, as well as data on opponents, opposed patents, IPC subclasses and decisions

The rest is behind the usual paywall, which is difficult to get around. The figures presented by Haseltine Lake were cited by SUEPO in the past in relation to declining patent quality.

The EPO is making life (career-wise) difficult to departing examiners. “Trauma will ruin the health or even the family,” Brumme warned after he had been sacked by Battistelli, having to live off donations for a number of years (he has many kids to look after). Someone told us that he was very cautious and reluctant to be seen or mentioned (e.g. by Team Battistelli), especially in relation to these donations that helped sustain him and his family.

Mind this relatively new comment about privacy issues that we wrote about before, especially three years ago (more times since):

can also reassure you that there is no confidentiality at all from the EPO part!
I used to be a patent examiner in a national patent office and applied to EPO a couple of times in the past…few days after submission my boss in the national office started mobbing as he was made aware of my job application. And “coincidentally” my boss used to be a friend of EPO’s “big boss”

They are spying in order to ‘intercept’ job seekers. This means that any career at the EPO can be a career ender.

The good news is that Brumme has a source of much-needed income again; on the downside, as he points out, the EPO staff has lost its voice. Ever since the decisions from ILO-AT (late July) SUEPO has said very little. Its site has barely been active.

08.15.18

Antiquated Patenting Trick: Adding Words Like ‘Apparatus’ to Make Abstract Ideas Look/Sound Like They Pertain to or Contain a ‘Device’

Posted in America, Deception, Patents at 4:20 am by Dr. Roy Schestowitz

Apparatus

Summary: 35 U.S.C. § 101 (Section 101) still maintains that abstract ideas are not patent-eligible; so applicants and law firms go out of their way to make their ideas seem as though they’re physical

THE examiners at the USPTO have been instructed (as per Section 101/Alice and examination guidelines) not to grant abstract patents, which include software patents. This means that applicants and the law firms whom they pay to ‘game’ the system will go out of their way to rephrase things, making life harder for examiners.

RichmondBizSense‘s patent listings, published only a few hours ago, include “Method and apparatus for context based data analytics” (analysis or analytics using algorithms).

“We certainly hope that examiners are clever enough to spot these tricks; the underlying algorithms do not depend on a device and aren’t strictly tied to any; they can run on any general-purpose computer.”Notice how they titled it; “apparatus” is just the same old trick (like “device”) for making abstract ideas seem physical. Lawyers’ tricks like these fool the examiners. “Device”, at least in the EPO, is the weasel word quite often used to make patents look less “as such” (or “per se” as they phrase it in India). We certainly hope that examiners are clever enough to spot these tricks; the underlying algorithms do not depend on a device and aren’t strictly tied to any; they can run on any general-purpose computer.

Watchtroll’s latest attack on 35 U.S.C. § 101 (this time Jeremy Doerre again, for the second time in a week) shows that patent quality is the real threat to these maximalists/extremists. They dislike justice, love litigation, and Section 101 is therefore a threat to them. Maybe they will just attack SCOTUS again later this week. Judge-bashing has become pretty common at Watchtroll.

Janal Kalis, another patent maximalist, wrote about “apparatus” this week:

The PTAB Affirmed an Examiner’s 101 Rejection of Claims for an Apparatus for Material Analysis: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010532-07-31-2018-1 …

Maybe the applicant thought that a generic/broad word like “apparatus” would be enough; maximalists like that word, but in this particular case it fooled neither the examiner nor the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR). There are many more like this; it’s quite the norm these days, tackling software patents and other abstract patents at the examination level with help/affirmation from PTAB.

Yesterday Dennis Crouch wrote about PTAB and an examiner rejecting a lousy Facebook patent. He probably (cherry-)picked it because this time, for a change, the Federal Circuit did not fully agree; it reversed and remanded the decision.

“Maybe the applicant thought that a generic/broad word like “apparatus” would be enough; maximalists like that word, but in this particular case it fooled neither the examiner nor the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR).”To quote: “Facebook’s U.S. Patent Application No. 13/715,636 claims a method for displaying a set of images after reshuffling or resizing the images. The Examiner rejected Claim 1 (below) as anticipated; and that rejection was affirmed by the Patent Trial and Appeal Board. Now on appeal, the Federal Circuit has reversed and remanded — finding that the USPTO had too loosely interpreted the prior art.

“The claimed image rendering process begins with a sequence of images. Each image is assigned a “first position” within an “array of contiguous image elements” — in other words, the images are put in a particular order. When a user adjusts the position or size of an image — there may be a need for reshuffling of the images into “second positions.” The claimed method includes a requirement that the reshuffled sequence “be contiguous.” — i.e., no gaps in the array.”

How is that not abstract? Never mind prior art, which was the basis for the original rejection…

Open Invention Network (OIN) Member Companies Need to Become Unanimous in Opposition to Software Patents

Posted in Law, OIN, Patents at 3:31 am by Dr. Roy Schestowitz

OIN still going with the flow of millionaires and billionaires who fund it, not Free/libre software developers

Opposition

Summary: Opposition to abstract software patents, which even the SCOTUS and the Federal Circuit nowadays reject, would be strategically smart for OIN; but instead it issues a statement in support of a GPL compliance initiative

THE USPTO is still granting software patents, never mind if courts continue and persist in rejecting these. OIN still generally supports software patents, albeit shyly. It doesn’t talk about that ‘too’ much. Just look at the member companies of OIN, especially founding members; some of these companies actively pursue their own software patents and IBM is blackmailing companies with these.

“OIN still generally supports software patents, albeit shyly.”Yesterday OIN issued this press release [1, 2] under the title “Open Invention Network Member Companies Unanimous in Support of GPL Cooperation Commitment” and what’s odd about it is that they talk about software licences rather than patent licences. The GPL is dealing with copyright (mostly), albeit GPLv3 indirectly deals with patents too. So it’s interesting that OIN now talks about the GPL rather than patent policy. From the opening paragraph:

Open Invention Network (OIN), the largest patent non-aggression community in history, announced today that its eight funding members – Google, IBM, Red Hat, SUSE, Sony, NEC, Philips, Toyota – have committed to rejecting abusive tactics in the enforcement of open source licenses by adopting the GPL Cooperation Commitment. The unanimous support of OIN’s funding members to this commitment reflects the strong belief that responsible compliance in open source licensing is important and that license enforcement in open source ecosystems comes with a cultural expectation that all parties will behave reasonably. OIN encourages each one of its over 2,500 licensees, as well as all participants in the open source community, to follow the example of the OIN funding members and adopt the GPL Cooperation Commitment.

Well, if you support GPL, dear OIN leadership, you will also push for abolishing software patents. As things stand at the moment, serial GPL infringer Microsoft uses software patents against OIN members. This malicious company is still pursuing such patents — abstract patents with which it is blackmailing companies. To give an example from yesterday’s news, Microsoft now uses/rides the “blockchain” hype [1, 2] to patent software. “To this end,” said one article, “Microsoft filed two patents with the U.S. Patent and Trademark Office back in June last year. The report came to light Thursday via a report published by the Office. [...] A trusted execution environment could also be very crucial in the verification of blockchain transactions on a common network or platform. This is especially reliable in the environment where the various pre-authorized transactions must interact.”

“Maybe if OIN bothered putting its weight behind the movement to abolish such patents, there would be better legal certainty/security for “Open” things (OIN stands for “Open Invention Network” after all, so surely it should care).”This is so obviously software and our next post will deal with examiners failing to reject these sorts of patents. Maybe if OIN bothered putting its weight behind the movement to abolish such patents, there would be better legal certainty/security for “Open” things (OIN stands for “Open Invention Network” after all, so surely it should care).

President Battistelli ‘Killed’ the EPO; António Campinos Will ‘Finish the Job’

Posted in Europe, Patents at 2:52 am by Dr. Roy Schestowitz

Reducing jobs, only months after outsourcing jobs at EU-IPO (sending these overseas to low-salaried staff, even in defiance of EU rules)

Closed

Summary: The EPO is shrinking, but this is being shrewdly disguised using terms like “efficiency” and a low-profile President who keeps himself in the dark

THE number of granted patents continues to decrease (a steady decline) at the USPTO, representing improvements (restrictions) imposed there by the courts. We’ll say a little more about that later.

“These people don’t care about scientists, whom they merely view/perceive as “human” “resources” (not to mention who has been put in charge of “human resources”).”At the office in Munich, however, patent maximalism reigns supreme. The agenda has nothing to do with science and technology; the management lacks background in science and technology. The President is a former banker and his predecessor is a politician. These people don’t care about scientists, whom they merely view/perceive as “human” “resources” (not to mention who has been put in charge of “human resources”). It’s all about money. All. About. Money. Short-term gain. What doesn’t count to them is the long-term survival of their ‘company’ (it’s actually not a company but an institution with a monopoly, which should not strive for profits but instead serve public interests).

“The official announcement is that target per examiner still increases, but the EPO shall have less examiners. Recruitment is halted and retirement shall not compensated.”
      –Märpel
Anyway, Märpel says that the EPO is “closing shop.” (that’s her headline). It is not literally but metaphorically doing so; it was ‘killed’ by Battistelli and his friend António Campinos (French successor of choice) ‘finishes the job’.

Here are some details from last night (some of this is new to us):

As discussed in the last post, the EPO experiences difficulties in finding candidates. Recruitment is stopped.

The tipping point was last spring, when President Battistelli had a project to move all staff to 5-years contracts. That project shocked the staff, especially staff from Germany. They spread the news to their friends and relatives, far beyond the borders of the Office: in Munich, even the lay person on the street knows that there is a problem at the big building near the Isar. Märpel was actually surprised to hear that message from distant relatives, even her doctor!

The project was put on hold, but this will not be sufficient to undo the damage done to the reputation of the EPO as an employer. Nowadays, prospective employees know that work contracts with the Office can be changed any moment to their disadvantage.

[...]

Instead, one of the first announcements of President Campinos was that the target for 2019 shall be lower than the one for 2018 (that announcement is not public but was told in several meetings). Why that surprising announcement when each preceding year saw the target increase by stunning numbers? The official announcement is that target per examiner still increases, but the EPO shall have less examiners. Recruitment is halted and retirement shall not compensated.

This is, in general, how institutions get diminished. Maybe Campinos hopes to covertly reduce the size of the workforce without having to announce layoffs, instead relying on people to leave (because their salary gets halved), their now-limited contract ending and so on. The net effect is the same.

What if this office wound up being just a big pile of stakeholders’ money (tied to toxic mortgages), lots of low-quality patents (of questionable validity), no high-quality staff, and a construction site?

08.14.18

Berkheimer Changed Nothing and Invalidation Rates of Abstract Software Patents Remain Very High

Posted in America, Deception, Patents at 7:31 am by Dr. Roy Schestowitz

Weight comparison

Summary: Contrary to repetitive misinformation from firms that ‘sell’ services around patents, there is no turnaround or comeback for software patents; the latest numbers suggest a marginal difference at best — one that may be negligible considering the correlation between expected outcomes and actions (the nature of risk analysis)

THE QUALITY of patents at the USPTO (existing and newly-awarded ones) isn’t great, but at least it seems like it’s improving and the number of patent grants is declining (at long last).

“Sadly, some people who write on patent matters are willfully clueless…”The psyche or mentality surrounding patents ought to change. Not all patents represent innovation and some kinds of patents actively suppress innovation. It’s not even a controversial premise as many scholars have shown just that, even empirically.

“Microsoft’s New Patent Will Let You Communicate With Others In 3D,” said a headline from yesterday, but patents don’t “let” anything. They restrict. Sadly, some people who write on patent matters are willfully clueless (this site is generally awful in its coverage on most topics because the writers don’t specialise in the areas they cover; they do Microsoft ‘ads’ a lot of the time, under the banner of “FOSS”)

“Apple Could Let You Store Your Passport on an iPhone,” said another new headline, misusing that word “let” again. Patents are not about “letting” but about monopolising. Another new article about Apple patents talks about so-called ‘Augmented Reality’ (buzzword); it’s a patent or at least an application that we wrote about over a weekend. It’s abstract, sure, but with trendy terms like ‘Augmented Reality’ (or AR for short) will examiners see that? Andrew Rossow, in the meantime, found the “blockchain” hype; he uses it to advance his professional agenda, which he calls “Intellectual [sic] Property [sic] Rights [sic]” right there in the headline. It’s outright ridiculous, but this is the kind of press coverage we find about patents. Some of it is composed by lawyers and the rest just repeats claims made by companies (without applying some critical thinking). A lot of it is just “buzzwords salad” — a subject we tackled on Sunday and Monday in relation to software patents.

“For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents.”What we really care about isn’t what patent examiners say but what patent judges say; it’s them (the latter) who have the final word, provided the accused can afford legal defense and a day (sometimes a year or more) in court.

For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents. They do so after Iancu’s appointment as much as (or almost as much as) they did a year ago, i.e. before his name was even brought up. Christopher King (writing in Fenwick & West Blogs) has just published another one of these dishonest #ALICESTORM posts. Those are not objective at all. Do they even try to hide their bias?

Here’s the key figure (among more):

The overall percentage of decisions invalidating patents under § 101 since we started tracking statistics in July 2014 has fallen slightly—from 67.5% to 66.0%—year over year.

The decline is very minor and there may be simple explanations for it. This may be noticeable (albeit barely) simply because fewer software patent ‘owners’ even bother anymore. They know they haven’t much of a chance ‘against’ § 101, so only the ‘stronger’ patents wind up in court.

As for caselaw, virtually nothing has changed. Nowadays some law firms attempt to attribute the minor decline to Berkheimer. That now looks foolish, especially in light of detailed statistics. “Berkheimer Effect” (as some patent maximalists wanted to dub it) or ‘pulling a Berkheimer‘ is useless. To quote: “Ironically, however, of the 25 decisions citing Berkheimer, 15 found invalidity, with only 10 finding validity, a higher invalidation rate than that of the recent cases not citing Berkheimer. Apparently courts primarily cite Berkheimer in order to acknowledge it before distinguishing it!”

“Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline.”So bringing up Berkheimer — one might semi-joke — actually reduces the chance of a favourable (to the plaintiff) judgment. Isn’t that hilarious? The numbers don’t support the assertions made by lawyers over the past 6 months. The numbers themselves suggest so. And so they spin facts. Next time someone like Iancu brings up his Berkheimer ‘memo’ we’ll surely point out that underlying facts aren’t on his side (pun intended, given the nature of the Berkheimer decision). Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline. He cannot just abolish Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) either, not after SCOTUS defended IPRs in Oil States.

Lockton Insurance Brokers Exploiting Patent Trolls to Sell Insurance to the Gullible

Posted in Deception, Microsoft, Patents at 6:40 am by Dr. Roy Schestowitz

LocktonSummary: Demonstrating what some people have dubbed (and popularised as) “disaster capitalism”, Lockton now looks for opportunities to profit from patent trolls, in the form of “insurance” (the same thing Microsoft does [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20])

EARLIER THIS month (at the very start of it) Managing IP surprised us by speaking of “IP insurance”; there are actually companies out there that offer insurance from lawsuits over things that don’t even exist (unlike car accidents or natural disasters). We hadn’t quite seen this before. Then, only yesterday, San Francisco Business Times published this ‘article’ (more like an ad, ending with “Questions about patent infringement insurance for your company? Give us a call at 415-[redacted].”) and it was composed by Adam McDonough, “Executive Vice President, Lockton Insurance Brokers” (by his own words).

“They create threats and fears in order for them to sell their ‘solutions’.”So they’re now using/leveraging patent trolls for profit; they are selling the scam which is ‘insurance’ for patents. It’s similar but not identical to things like RPX, which nearly collapsed because patent trolls are on the demise/decline in the US. It’s a form of ‘protection’ money; they’re selling mercenaries in a village with the Mafia embedded in it; once the authorities weed out the trolls (the Mafia), demand for the mercenaries is no longer there.

The headline of the above article is “Patent insurance allows companies to focus on innovating, not competitors and trolls”; this is similar to Microsoft’s “IP Advantage”; Microsoft keeps feeding trolls while offering ‘protection’ from them.

If or when we spot more articles (ads) along those lines, we’ll surely point these out. It is ridiculous if not outrageous, and in some sense it’s an extension of a parasitic ‘industry’ akin to the one Black Duck is exploiting. They create threats and fears in order for them to sell their ‘solutions’.

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