Ears wide shut

Summary: The situation in the US is becoming unbearable for those who put all their eggs in the software patents basket; in the meantime, however, more attempts are being made to change the law

THE US patent office gradually moves away from software patents. It makes it harder to get any. That does not mean that applicants can't find ways around Section 101. Earlier this week we found this article about a new patent. "Face-tracking sensors and sophisticated software would manage the display so that you saw a realistic blended picture from any angle," it said. Another article said: "Amazon acquired Body Labs last year, an AI-software and computer vision company that once touted its ability to create 3D models of human bodies in motion and then dress them in virtual outfits..."

Here we go again with buzzwords like "AI" and "VR". These help opportunists get past the restrictions and receive software patents. Amazon has had truly notorious software patents, some of which we covered here before.

What's noteworthy is that courts, unlike the patent office, aren't tolerating software patents. Lawyers know that. We regularly see anti-Section 101 rants from law firms that profited from software patents. Here's a new rant from Jeremy Anapol and Maria Anderson. What they're basically doing, with polite language, is constant complaining about Section 101/Alice. We have become accustomed to that.

Charles Bieneman has just written about yet another software patent which bites the dust, owing to Alice. To quote:

Implementing a process in a highly technical environment will not necessarily save patent claims challenged under the Alice abstract idea test, as illustrated in Ancora Technologies, Inc. v. HTC America, Inc., No. C16-1919 RAJ (W.D. Wash. Dec. 14, 2017). In this case, the court dismissed, under FRCP 12(b)(6), a complaint of infringement of U.S. Patent No. 6,411,941, directed to a “method of restricting software operation within a license limitation,” even though the claimed method was implemented in the sophisticated technical environment of a computer BIOS system.

[...]

The plaintiff argued that, as in Enfish, LLC v. Microsoft Corp., the claims here were directed to improving operation of a computer. But, considering the claims under the first prong of the Alice abstract idea test, the court thought these patent claims were more like those at issue in Intellectual Ventures I LLC v. Erie Indemnity Corp., where the Federal Circuit held that claims directed to storage of electronic files were patent-ineligible.

[...]

Turning to the second prong of the Alice test, the plaintiff, citing BASCOM Global Internet Services, Inc. v. ATT Mobility LLC., argued that claim 1 recited in unconventional arrangement of admittedly known parts by reciting “using an agent to software licensing verification structure in the BIOS, and then actually verifying a program using that verification structure.” But the court disagreed that this was an inventive concept overcoming the claimed abstract idea. The claim simply recited storing data in a pre-existing memory.

It must be pretty stressful to depend on software patents. They're very weak; they're not worth the risk.

Here we have the patent troll Dominion Harbor calling a "cheat sheet" something it plans to bypass Alice with.

Last year, as we noted quite recently, the Federal Circuit smashed software patents using Alice. There was just about no decision truly antagonising Alice. None! Here's the so-called 'cheat sheet' [1, 2] which lists all important decisions (those which can be cited in the future):

THE FEDERAL CIRCUIT'S 2017 PRECEDENTIAL SECTION 101 CASES: 1. Cleveland Clinic Foundation v. True Health Diagnostics LLC., 859 F.3d 1352 (Fed. Cir. 2017) 2. Credit Acceptance Corp. v. Westlake Services, 859 F.3d 1044 (Fed. Cir. 2017) 3. Intellectual Ventures I LLC v. Capital One Financial Corp., 850 F.3d 1332 (Fed. Cir. 2017) 4. Intellectual Ventures I LLC v. Erie Indemnity Co., 850 F.3d 1315 (Fed. Cir. 2017) 5. Mentor Graphics Corp. v. EVE-USA, Inc., 851 F.3d 1275 (Fed. Cir. 2017), panel rehearing and rehearing en banc denied, 870 F.3d 1298 (Fed. Cir. 2017) 6. RecogniCorp, LLC v. Nintendo Co., 855 F.3d 1322 (Fed. Cir. 2017) 7. Return Mail, Inc. v. United States Postal Service, 868 F.3d 1350 (Fed. Cir. 2017) 8. Secured Mail Solutions LLC v. Universal Wilde, Inc., 873 F.3d 905 (Fed. Cir. 2017) 9. Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364 (Fed. Cir. 2017) 10. Thales Visionix Inc. v. United States, 850 F.3d 1315 (Fed. Cir. 2017) 11. Two-Way Media Ltd. v. Comcast Cable Communications., LLC, 874 F.3d 1329 (Fed. Cir. 2017) 12. Visual Memory LLC v. NVIDIA Corp., 867 F.3d 1253 (Fed. Cir. 2017)

We have covered most of the above. These were frustrating to the patent microcosm.

So what is the patent microcosm going to do? It will play dirty, as usual, and attempt to change the law. As the FFII's President put it yesterday: "The great return of Software Patents in US, yet another bill written by the patent industry."

"Such bills would not pass," I assured him, "but those behind such bills want us to believe otherwise..."

Section 101 is becoming the norm as it is; it has not been changed for a long time. One new message said: "The Chisum Patent Academy will dig into these 2017 Sec 101 #patent eligibility cases (and other notable topics) at our upcoming March seminars in #Houston and #Cincinnati. To register, visit https://chisum-patent-academy.com/ https://twitter.com/ChisumOnPatents/status/948198698919571456 …"

Yeah, sure, they will try to undermine Section 101, but that doesn't mean they will succeed. So will Watchtroll, who just can't help obsessing over years-old decisions. Watchtroll wrote this week: "I again continue to wish for patent eligibility reform in Congress that would overrule Mayo, Myriad and Alice."

Keep on wishing. It's another one of those "Patent Wishes for 2018"; Check out "New Year's Resolutions For The U.S. Patent System" by Courtenay C. Brinckerhoff of Foley & Lardner LLP (greedy law firm). The author tries to interject lobbying agenda into the USPTO's alleged "resolutions" and it's just the tired old anti-Alice and anti-Mayo. To quote: "It’s been nearly six years since the Supreme Court called the patent eligibility of diagnostic methods into question in Mayo v. Prometheus, and two and a half years since the Federal Circuit twisted the knife with its decision in Ariosa v. Sequenom. The USPTO issued guidelines to help stakeholders navigate the newly treacherous €§ 101 terrain, but when even the Patent Trial and Appeal Board doesn’t let applicants follow those narrow paths, it’s no surprise that individual examiners find roadblocks where none used to be."

That the USPTO actually improved patent quality isn't a bad thing. Unless one is in the litigation 'business' (like Foley & Lardner LLP)...

Jeff Lindsay on Twitter, citing Watchtroll, wrote this: "When USPTO employees start claiming to be "judges" or even "chief judges" as they strike down 90% of granted patents, we have a serious arrogance issue that is harming innovation & property rights in the US. See "Nightmares" in this @IPwatchdog article: https://lnkd.in/fhw9mmg"

No, USPTO workers claim no such thing. Their job is inherently judging applications. Lindsay set up a straw man (argument) here. We assume he's alluding to PTAB. The 'professional' PTAB bashers, cowboys such as Paul Morinville, are again (over at Watchtroll) attacking the Supreme Court. Their desperation is quite revealing. They just don't want to obey the law and they attempt to change it by shaming judges, courts etc.

Banner & Witcoff's Ernest V. Linek and Brian Emfinger have meanwhile written about Alice and it seems like they too aren't honest. If patent law firms were honest (they're not), they'd say software patents are de facto dead and not worth pursuing in courts anymore. This is what they said:

As non-traditional venues see more patent litigation in the aftermath of TC Heartland and Cray, time will tell if further distinctions emerge between district courts’ treatment of challenges to subject-matter eligibility and the various motions for disposing of patent infringement claims on that basis.

The venue doesn't matter that much, especially once cases are brought before the Federal Circuit. The Federal Circuit no longer tolerates software patents.

Perhaps the most worrying thing here is that people with zero experience in software are advocating software patents. Consider Watchtroll as a prime example of it; it's like a think tank that's hiring writers to promote software patents -- a subject they neither understand nor affects them professionally. See, in Watchtroll no tech/legal background is needed; "Somewhere near the end of 2011," Steve Brachmann admitted the other day, " I responded to an ad that was left on Craigslist. A website called IPWatchdog.com was looking for a writer to contribute content on Apple’s patenting activities..."

Promoting litigation and software patents. That's the only objective. Taking something which is hot in the news and then spinning that -- somehow -- as regarding patents. That is a Watchtroll kind of lunacy. Watch what Brachmann wrote the other day; Watchtroll outdoes itself with the patently absurd assertion that we can't quite go to space without software patents. "Benefits of NASA Space Directive on Mars could be Limited by Uncertain Software, Biotech Patentability," says the headline. We're speechless. Such is the intellectually-dishonest nature of Watchtroll nowadays. ⬆