Summary: There are new examples and ample evidence of ۤ 101-dodging strategies; the highest US court, however, wishes to limit patent scope and revert back to an era of patent sanity (as opposed to patent maximalism)

AS noted in our previous post, software patents aren't doing well in the US. The USPTO has become tougher on them, with or without the Patent Trial and Appeal Board (PTAB) and the courts weighing in.

"Recent patents in New Hampshire," published earlier this week in local media, reveal a little bit of information in the form of summaries. Some of these newly-granted (by USPTO) patents definitely sound like software patents. Having reviewed the media so far this week, we see other examples of it, including one from Accenture. "The newly issued patent," it says regarding U.S. Patent No. 9,818,067, "is the latest in the worldwide intellectual property (IP) portfolio for Accenture, which includes more than 6,000 granted patents and pending patent applications."

Many of these are just dubious software patents. How about this new example from Monday, which name-drops both "Blockchain" and "IoT" in the headline? It says:

HK-based AnApp’s founders are well-versed in computer hardware and software, holding more than 20 patents in semiconductor and electronics designs, and believe that the integration of IoT and blockchain will benefit our industries and daily lives.

Well, blockchains are software, but media hype about blockchains has been out of control lately, so the applicants hope it will make them sound innovative. The patent trolls' lobby/Richard Lloyd has in fact just name-dropped all the misleading buzzwords which are often misused to patent software even in an age when software patents are not ponent (at least in courts). "AI, blockchain and IoT patents all on the shopping list for latest IP3 buying programme" is the headline and the summary adds more buzzwords, such as "virtual reality" and "automotive". To quote:

Details of the latest iteration of IP3, the patent buying programme hosted by AST designed to give IP owners a quick and efficient way of selling their assets, were announced this morning with this year’s version open to non-AST members and focused on some of the hottest tech areas. On the shopping list for this year’s programme are patents in eight different categories including artificial intelligence, virtual reality, automotive, blockchain and Internet of Things (IoT).

They are simply trying to put new 'clothing' on abstract patents. Or ascribe algorithms to some device or vehicle they're installed on...

How about this one as a new example? Or this new press release about "Two New Design Patents" (design patents are somewhat of a farce; applicants would be wise to rely on trademarks and copyrights instead).

Yesterday, in Above the Law, Gaston Kroub said that "[t]here is a vulnerable population hungry for IP advice," but who are these vulnerable people? Victims of patent trolls or the ones patent law firms urge to sue just about everyone? The following loaded question is revealing:

3) There has been a lot of expressed concern about the declining value of U.S. patents, and the possible repercussions to the innovation economy. How do you think the clinic’s participants have adjusted or responded to the alleged malaise in the patent system?

There's no such "malaise"; the quality of patents is being elevated and there's nothing wrong with that. But they speak on behalf of the patent microcosm, not scientists.

Charlotte Tillett and Camille Arnold (Stevens & Bolton LLP, i.e. another law firm) has just published this new article alluding to the Supreme Court in relation to the pharmaceutical industry. To quote:

February saw the long-awaited Supreme Court hearing of Warner-Lambert v Generics t/a Mylan relating to the second medical use patent of pregabalin (Lyrica) for the treatment of pain. The judgement has huge importance to the pharmaceutical industry, clarifying the test for plausibility in patent applications, and determining the approach to take when applying for, or enforcing, second medical use patents.

[...]

The decision should come in the next few weeks, but what should companies do in the interim to protect their positions? Patent applications filed now run the risk of being found invalid for lack of plausibility later, should the Supreme Court enforce a higher threshold test. However, waiting to obtain further support for the patent application may be unwise, if there is a risk that another party may submit an application in the meantime.

Ultimately the decision will be a commercial one – if funding is required to progress research into the drug and cannot be acquired without a patent, then it will not be possible to wait to obtain clinical trials. However, if the Supreme Court does set a high bar for plausibility, funders may well be less inclined to accept patents that risk invalidity in the future.

Judging by many recent decisions from the Supreme Court (regarding patents), it's not hard to guess the outcome; either way, the law firm above perpetuates the "research" (or R&D) myth. It's common knowledge that much of the research money actually comes from government, e.g. university grants. In reality, for practical reasons, access to medicine is a lot more important than patents. We shall soon know if the Supreme Court maintains the consistency of its rulings. ⬆