Bonum Certa Men Certa

In an Age of Necessary Patent Reform and Permanent Uncertainty for Software Patents the Patent Microcosm Looks for Workarounds and Spin

Source: "Patent Office head to keep spot in Trump administration" (report from yesterday)

Michelle Lee on software patents and trolls



Summary: Commentary on the status quo in the Michelle Lee era and some examples of bias from the patent microcosm, as well as news regarding the NFL getting sued by the Kudelski Group

THE PAST couple of years have been very encouraging for patent reformers. Reformist transitions are occurring (except in the EPO and SIPO) which limit patent scope in lieu with public interest and those who make a living purely out of patents aren't liking any of it. It has gotten so bad that they now insult the USPTO's Director, insult examiners, and even insult judges. What next? Will racist attack too become prevalent?



"Nothing seems to be going in favour of the patent microcosm these days, especially not high-profile cases."National Law Review, a large publication which covers patents among many other things, has this new list of "Intellectual Property Cases to Watch in 2017". Nothing in the list challenges Alice itself (a de facto ban on many is not most software patents) and number 2 in the list can be the end to most patent trolls. 2017 should be interesting, we believe, unless Trump makes a mess of it with SCOTUS nominations/appointments which go beyond filling Scalia's empty seat (swapping one Republican bigot with another).

Watchtroll, still trying to recover from the 'horrible' news which is more of the same (patent reform), now complains about €§ 101 (related to Alice) broadening its scope to challenge yet more patents. Nothing seems to be going in favour of the patent microcosm these days, especially not high-profile cases. They know it and they desperately cherry-pick cases to make it look as though they are gaining ground.

"We hope that Director Lee will add some more judges to the PTAB."Computer vision is my professional field of research. I used to write a lot more about patents in this area and why they oughtn't be granted (it's all reducible to mathematics and can be conceptualised with pen and paper). Vision patents are generally patents that oughtn't be granted, yet the USPTO has just let another one slip in. Someone should petition PTAB for an IPR (inter partes review), but PTAB is already overworked and arguably understaffed. We hope that Director Lee will add some more judges to the PTAB. This would help improve the image and value of US patents.

Writing about SCOTUS, Minter Ellison, a law firm, recalls the Alice moment, not mesmorising but mourning. "Approximately two years ago," it says, "the US Supreme court in the Alice decision considered the in principle patentability of software patents. Since then, gaining US software patents has been very difficult. In 2016, the United States Court of Appeals for the Federal Circuit (the ‘Court’) has considered numerous appeals from district courts relating to patentable subject matter. This blog post discusses the two-step test from the Alice decision and how the test was applied by the Court in 2016, the developing trends for patentable subject matter in the US as it relates to software patents and the take-away messages for 2017."

As can be expected from a firm that profits from software patenting, tips are offered therein for dodging or side-stepping the rules, thus sneaking software patents past examiners (until or unless courts/PTAB throw these way). Here is a similar new guide for getting business method patents past examiners, based on the latest eligibility guidelines:

About a week before the holidays, the U.S. Patent and Trademark Office quietly published a trio of new subject matter eligibility examples directed to the abstract idea exception to patentability. These are the latest in a series of examples provided by the USPTO to its examining corps, the series including previous examples published in December 2014, January 2015, and July 2015 (other USPTO publications include example claims directed to the law of nature and natural phenomenon exceptions). While the focus of this guidance is to educate examiners about how to determine whether pending claims are valid under 35 U.S.C. €§ 101, practitioners and patentees will find the examples to be helpful when considering how to draft and amend claims.


A lawyers' portal, one which is even more overt, does very little to hide its bias as it gives tips for promoting and defending software patents in an age when they're dying. "There are key concepts," it says, "but no bright line rules on software patents. The best approach is to follow the common law, comparing and contrasting prior patent cases."

The problem is, they're typically cherry-picking only the cases which suit their agenda. It leads to bad advice, e.g. to clients or to readers of their so-called 'analyses'. Trying to improve one's chance of success is not in itself a problem; that's what lawyers do. Some new advice like "importance of a prior art search" is better because it's not about misleading examiners (or judges) but about ensuring one's idea is really innovative and thus eligible.

"Software patents are a pain in the behind to a lot of producing (or productive) companies out there."Sadly, not only patent law firms encourage the 'tricking' of examiners. IBM is doing that too (the former Director of the USPTO in fact came from IBM and is still being paid by IBM) and the corporate media fails to critically assess IBM's aggressive behaviour, to the point where even weeks later IBM is celebrated as some kind of champion, simply because it paints software patents as "cloud" (buzzword) or AI (an older buzzword).

Software patents are a pain in the behind to a lot of producing (or productive) companies out there. IBM now attacks a lot of legitimate companies, including medium-sized ones. According to the latest news, even the NFL has found itself sued by such patents (plenty of press coverage this week, e.g. [1, 2, 3, 4, 5, 6, 7, 8]). Lawsuits are a symptom of disagreement over patents. They are far from the ideal outcome and they are desirable to nobody except patent lawyers.

Recent Techrights' Posts

People's Understanding of the History of GNU/Linux is Changing
RMS is not a radical, he's just clever enough to see and foresee what's going on
Microsofters Were Scheming to Take Over This Entire Web Site (in Their Own Words!)
Money gets spent censoring/deplatforming people who speak about real issues; no money gets spent actually tackling those underlying issues
Bicycles for the Minds and the Story Harrison Bergeron
"The goal of having people in charge of the tools they use and that the tools should amplify ability" has long been abandoned
[Video] Cory Doctorow Explains DMCA: DRM in the Browser (or Webapp) Will "Make It a Felony to Protect Your Privacy While You Use It."
Pycon US Keynote Speaker Cory Doctorow
 
Microsoft Layoffs Again in Bay Area
Microsoft relies on people's false belief that being "in LinkedIn" will get you a job; well, seems like even working inside LinkedIn really sucks and you lose the job
Gemini Links 30/05/2025: Fighting Against the Bad News, and Slop is Dehumanisation Disguised as "Intelligence"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 29, 2025
IRC logs for Thursday, May 29, 2025
Links 29/05/2025: Chinese Cracking Against EU Institutions (Prague), More Assaults on Media and Its Funding Sources
Links for the day
EPO Workers Caution That the Officials Are Still Illegally Trying to Replace Staff With Slop (to Lower Quality and Validity of European Patents)
Nobody in Europe voted for any of this
Links 29/05/2025: US Health Deficit and Malware Disguised as Slop Generator
Links for the day
Links 29/05/2025: Turtle Roadkill, Modern 'Tech' as a Sting
Links for the day
Thanks for All the Fish, Linux Format
people who once wrote for it (or for other magazines) comment on the importance of this news
Links 29/05/2025: YouTube Problem and Giant Privacy Hole in Microsoft OneDrive
Links for the day
United States Courts With Sworn Testimonies Are on Our Side, We'll Present the Same Here
Chronicling what happened is a moral imperative
Serial Sloppers Ruin and Lessen the Incentive to Cover "Linux"
The Serial Sloppers (SSs) ought to be named and shamed, but almost nobody does this
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 28, 2025
IRC logs for Wednesday, May 28, 2025
Links 28/05/2025: 'Emulation Layers' (Measurements and Linguistics), Libraries, and Discomfort
Links for the day
Links 28/05/2025: More Arrests for Bitcoin-Connected Torture and Prosecutions for Dieselgate-Linked Executives
Links for the day
Even Microsoft (MSN) Covers Richard Stallman's Public Talk in Milan 2 Days Ago
He spoke in Spanish earlier this month (Alicante)
Gemini Links 28/05/2025: Techo-authoritarianism With Slop Plagiarism and "No Online June" (Going Offline)
Links for the day
Links 28/05/2025: GitHub MCP Exploited and MathWorks Discovers Huge Windows TCO
Links for the day
Very High Attendance Level at Richard Stallman's Talk Shows People Can Relate to His Message
Smear campaigns have their limits
Gemini Links 28/05/2025: Celsius-Fahrenheit, Endless Scrolling/Infinite Scrolling, and Trapping LLM Slop Bots
Links for the day
Prison gate backdrop to baptism by Fr Sean O'Connell, St Paul's, Coburg
Reprinted with permission from Daniel Pocock
More Photos From This Week's Milan Talk by Richard Stallman
The posts are in Italian, not English
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 27, 2025
IRC logs for Tuesday, May 27, 2025