ۤ 101 will carry on invaliding abstract patents

Summary: There is no sign that software patents will be rendered worthwhile any time in the near future, but proponents of software patents don't give up

THE departure from software patenting (more so post-Alice) isn't to be taken for granted. It needs to be guarded. There are many attempts to undermine Alice, e.g. overriding the decision with another (more recent one), changing Section 101 (ۤ 101), and passing new laws in Congress. The USPTO probably couldn't care any less because it profits from patents (academics say it explains low patent quality), but at the same time it needs to respect the law, especially the Supreme Court.

Do not expect the Supreme Court to override (or 'overturn' so to speak) Alice any time soon. As a matter of fact, a case which a patent maximalist claims to an "Alice 101 case" will remain buried as far as the Justices are concerned.

"As a matter of fact, a case which a patent maximalist claims to an "Alice 101 case" will remain buried as far as the Justices are concerned.""Yesterday," the maximalist wrote, "the Supreme Court Denied Cert. in RecogniCorp v Nintendo—an Alice 101 case." He also said that "the Supreme Court Denied Cert. in the UMass Gene Case—an Eleventh Amendment State Immunity Case." He then added that "the Supreme Court Denied Cert in the Smartflash v Apple case, where &533M verdict was reversed." And finally: "The S.Ct. granted cert. today in Western Ge. co LLC v. Ion Geophysical Corp., case number 16-1011. This is a damages case." Patently-O cared enough about that last one to write a blog post about it. "The Supreme Court has granted writ of certiorari in the international-patent-damages case WesternGeco LLC (Schlumberger) v. ION Geophysical Corp., Docket No. 16-1011," it said. This has zero relevance to Alice. It's here to stay and that's just fine.

This very long new article from Josh Landau explains that it's not the 'disaster' or the 'avalanche' the patent microcosm tries to call it. Here are some numbers to put things in perspective:

This search shows that, from Bilski’s opinion through mid-July 2017, there have been a total of 22,047 patent applications which have ultimately been abandoned after receiving a €§ 101 rejection under any of Bilski, Alice, Mayo, or Myriad. (For comparison, the USPTO issues approximately 300,000 patents every year.)

This doesn’t mean that these applications were abandoned because of the €§ 101 rejection—for example, a number were abandoned even though they were allowed because the applicant failed to pay the issue fee. It doesn’t even mean that the €§ 101 rejection wasn’t overcome—in some cases, the €§ 101 rejection is overcome and rejections over prior art lead to abandonment. All it means is that at some point a €§ 101 rejection was received, and the application was ultimately abandoned.

Still, this is the highest possible number of applications that could even arguably be considered to be abandoned for a reason that is in some way related to a ۤ 101 rejection.

Let’s take a look at the opposite question—how many patent applicants overcome a €§ 101 rejection?

In an effort to 'scandalise' ۤ 101 the lobbying 'media' keeps on going. The patent microcosm, as one ought to expect, is all over this. It refuses to let go and this article from 3 days ago said: "Patents protect inventions that are new, useful and nonobvious. The three main categories of patents are utility patents, design patents, and business method/software patents."

"In an effort to 'scandalise' ۤ 101 the lobbying 'media' keeps on going."But what kind of law firm would honestly promote business method/software patents in 2018?

Here's another new example, this one titled "Patent Eligibility and Obviousness in a Covered Business Method Patent Review" (also from the patent microcosm). "The limits of patent eligibility continue to be a major hurtle," it says, but for who? For those who pursue litigation, not creation. But that's not how the law firm puts it. To quote:

The limits of patent eligibility continue to be a major hurtle for patent owners whose patents are subject to Covered Business Method Patent Review (CBM) at the USPTO’s Patent Trial and Appeal Board (PTAB). In IBG LLC v. Trading Tech. Int. Inc., Case CMB2016-00090 (PTAB December 7, 2017) the PTAB issued a Final Written Decision holding that US Patent 7,725,382 was not directed to patent eligible subject matter under 35 U.S.C. €§101. In addition to the €§101 holding, the PTAB held that the Petitioner failed to meet their burden to show that the ‘382 Patent was obvious over certain prior art under 35 U.S.C. €§103.

These are the usual rants about ۤ 101, PTAB and so on. It has gotten rather tiring. The same site is absolutely paranoid over Alice/Mayo (ۤ 101). See the last paragraph here:

The answer to the question posed by the title is no, the Federal Circuit’s recent decision in Inventor Holdings, LLC v. Bed Bath & Beyond Inc., No. 2016-2442 (Fed. Cir. Dec. 8 2017) notwithstanding (reported on by this blog in “Attorney Fees Awarded for Post-Alice Patent Litigation”). Two recent district court patent cases in which the validity under 35 USC €§101 of the asserted patents was in question yielded different results on the award of attorney fees under 35 USC €§ 285 (Opal Run LLC, Plaintiff v. C & A Marketing, Inc., Defendant, No. 2:16-CV-00024-JRG-RSP (Eastern District of Texas, Marshall Division) (November 29, 2017) (“Opal Run v. C&A”) and Product Association Technologies v. Clique Media Group, No. CV 17-5463-GW (PJWx), (Central District of California) (November 30, 2017) (“PAT v. Clique Media”)). Both cases slightly predate the Federal Circuit’s Inventor Holdings decision.

[...]

Lessons for Practice

Think twice before asserting claims that may be vulnerable to a ۤ101 challenge.

Prior to asserting a claim that may be vulnerable to a ۤ101 challenge, decide if saving the claim from a ۤ101 review is worth the risk of paying attorney fees.

When seeking attorney’s fees for a defendant, dig as deep as possible to find evidence of the plaintiff’s motives in asserting the infringement claims.

They just try hard to bypass ۤ 101 in order to dodge challenges, seeing perhaps press releases like this new one which speaks of "patents [on] understanding personality" (using algorithms).

"...not every time ۤ 101 gets brought up it's instantaneously applicable."These are clearly software patents. They just avoid this term.

The same site posted another such rant a few some days ago (regarding Alice) and this time it was looking to exploit Finjan (a troll case which we covered the other day and Watchtroll belatedly mentioned on Sunday). They're latching onto this case for Alice-bashing purposes, even though there's no basis for it, as we explained some days ago. To quote:

Broad patent claims directed to computer virus screening have survived an Alice/35 U.S.C. €§ 101 patent-eligibility challenge at the Federal Circuit. Finjan, Inc., v. Blue Coat Systems Inc., No. 2016-2520 (January 10, 2018) (precedential). As reported here, the District Court had denied a post-trial motion seeking to set aside a finding of infringement on the grounds that claims of the ’844 patent were patent-ineligible. Addressing patent-eligibility along with other issues (not addressed in this post) related to several patents in suit, the Federal Circuit affirmed the district court’s holding that claims of U.S. Patent No. 6,154,844, entitled “System and method for attaching a downloadable security profile to a downloadable,” are not directed to a patent-ineligible abstract idea.

As we said before, not every time ۤ 101 gets brought up it's instantaneously applicable. The very fact that it's not a catch-all defense actually lends legitimacy to ۤ 101. But don't expect sites like Watchtroll to acknowledge that. They're lobbying and selling their services, that's all. A couple of days ago the founder posted his marketing spam (selling the 'industry' which rips inventors off). In his own words: "For competent, thorough US patent searches alone you would pay at least $400 for something that is relatively simple and up to $800 to $1,000 for a search alone on something complex, or deals with software. This cost is for the professional patent search alone, and does not include the cost of an attorney to review the search and offer an opinion about patentability."

The bottom like is, who pays? The other day fee deference was brought up after the "the district court dismissed the case on summary judgment after finding the claims barred under 35 U.S.C. ۤ 102."

"Watchtroll also runs sponsored press releases."Whoever pays does not matter much to the law firms; it's always them who eventually net that money.

Watchtroll also runs sponsored press releases. Truth does not seem to matter to these people and authors in TechDirt generally regard that site to be lacking integrity (they told me so). Watchtroll now boils down to €§ 101 lobbying, PTAB bashing and sometimes even CAFC bashing (Robert Schaffer and Joseph Robinson wrote two articles to that effect on Friday [1, 2]). From the latest PTAB rant of theirs: "The Federal Circuit affirmed the rejection of several claims in a patent owned by Monsanto. The patent is directed to a two-step process for crossing two parent soybean lines to produce soybean seeds with a modified fatty acid profile. The Board affirmed the examiner’s rejection, during inter partes reexamination, that the claims are anticipated by, or obvious over, a prior art patent to Booth."

Monsanto has long used patents to bully just about everyone. Its patents are, unsurprisingly, some of the most notorious out there as they claim 'ownership' of particular bits of nature. These are ethical issues. Bilski, Alice, Mayo, and Myriad are very much necessary. ⬆