THE breadth of USPTO patents isn't too encouraging and isn't sufficiently strict. Design patents, for example, have long earned negative publicity for patents [1, 2]. They're widely seen as too vague and unoriginal; they have attracted a lot of negative press coverage.
"They're widely seen as too vague and unoriginal; they have attracted a lot of negative press coverage."On January 30th Sterne Kessler Goldstein & Fox PLLC published "Design Patents Continue to Show Survival Strength at the PTAB: Institution Rates Remain Lowest Among All Technology Categories and Well Below 50%". It's not particularly surprising as many of the patents targeted by PTAB (or the petitioners at PTAB) are software patents. But that still begs for an answer; Why does the US cling onto design patents so hard? Days ago the Docker Navigator said that a "court denied plaintiff's motion for summary judgment that defendant's auto body part design patents were invalid and rejected plaintiff's argument that the aesthetic-functionality test should apply to design patents."
"They distort outcomes of cases again."For those who aren't too familiar with design patents, they're about layout rather than function. They're almost like patents on art. GUIs, for example, can be designs.
A week ago, published in several sites (e.g. [1, 2]) was a piece by Andrew R. Cheslock from Foley & Lardner LLP. He is the latest person to spread the lie that GUI patents are software patents (they're not). It's about Core Wireless Licensing S.A.R.L. v LG Electronics, Inc. et al. -- a case which we wrote a great deal about earlier this month. "In Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. et al.," he wrote, "the Federal Circuit offered rare guidance on the contours of patent eligible subject matter under ۤ 101."
"The fact that they still latch onto Core Wireless and then try to frame it as a "rebound" is worrying. It's revisionism at best."GUIs don't fall under ۤ 101. It's not too hard to see why; it's just the wrong test.
At around the same time we saw Jennifer B. Maisel from Rothwell, Figg, Ernst & Manbeck, PC writing similar things about this case. To quote: "It will be interesting to see how the USPTO (and courts) will assess the eligibility of claims directed to graphical user interfaces (GUI) in view of the Move decision. As is clear from the Court’s analysis, patent practitioners would be well advised to include specific details in the claim and the specification not only as to how a claimed interface is achieved, but why it offers a technical solution to a technical problem in the art."
Yes, "in the art." It's not about code. I received some responses a few days ago alleging GUIs were code, but I responded by saying that GUIs alone -- not callback functions -- are not code. I wrote many GUIs over the years (using a lot of different toolkits). They're not code. They're layout descriptors.
Then there's the latest nonsense from Fenwick & West (the Bilski Blog people), who would have us believe there's a software patents rebound because of the above case. There isn't. They distort outcomes of cases again. The Core Wireless outcome (very recent case) was not about software patents, but the patent extremists will spread that lie anyway. Gregory Hopewell's article said this:
Do you remember obviousness before KSR v. Teleflex? To invalidate, the rule went, one must find an express rationale for combining references (a teaching, suggestion or motivation). The KSR ruling reminded us that the TSM test was too rigid—the proper analysis should more flexibly evaluate obviousness with the skilled artisan in mind, without rigid requirements for these rationales in the references themselves.
If we knew how to more flexibly identify rationales for obviousness post-KSR, it was not clear how to more flexibly apply patent eligibility without the machine or transformation test after Bilski and Alice. A machine, apparently, was now just a clue. But identifying how to apply the more general principles from Alice and Bilski was not as easy to apply as a flexible obviousness test. The recent Core Wireless decision may show us a more useful theme for applying a more general approach to obviousness.
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General principles for finding claims eligible have been elusive. A few weeks ago, the Core Wireless decision (Fed. Cir., Jan. 25, 2018, by J. Moore, affirming eligibility) suggests a broader theme that may help tie these eligible cases together.
In summarizing prior eligible decisions, the court returned, again and again, to how prior eligible decisions addressed claims with features that were “particular” and “unconventional.”