Bonum Certa Men Certa

'Cloud', 'AI' and Other Buzzwords as Excuses for Granting Fake Patents on Software

Cloud on beach



Summary: With resurgence of rather meaningless terms like so-called 'clouds' (servers/hosting) and 'AI' (typically anything in code which does something clever, including management of patents) the debate is being shifted away from 35 U.S.C. €§ 101 (Section 101); but courts would still see past such façade

THE EPO and USPTO both have a bad new habit that they spread to other patent offices, such as KIPO in Korea. They use or misuse buzzwords. They try to make things outside patent scope seem so innovative that somehow this supposed innovation defies the rules (scope). Sometimes that manages to impress or at least confuse examiners and judges.

"So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords."It's hard to patent software. So it's not hard to see why patent maximalists would pursue such tricks. As recently as Sunday Watchtroll published this rant about Section 101/Alice -- the basis (or legal framework) upon which most software patents become void. "This has prompted many to cast a grim prospect for the software patent industry," Babak Nouri (at Watchtroll) wrote less than a couple of days ago, as if the patents themselves are the industry...

"A Realistic Perspective on post-Alice Software Patent Eligibility" is the headline and here's a snide remark directed at the law itself: "Much of the havoc wrought in the software patent system by the landmark decision Alice v. CLS Bank International, 134 S. Ct. 2347 (2014) stems from the unworkable two-part patent eligibility test based on vaguely defined and nebulous Abstract idea and significantly more constructs. The High court’s reluctance or perhaps inability to precisely define these standards and the perceived lack of discernible consistency by the patent community in the way these standards have been applied in the compendious jumble of case law, has perpetuated a sense of uncertainty. This has prompted many to cast a grim prospect for the software patent industry."

Who said this so-called 'industry' (it's not even an industry) deserved to exist in the first place? Let coders write code. Most of them never dealt with lawyers and aren't interested in lawsuits. It's the lawsuits 'industry' looking to cause trouble.

A few days ago Elliot C. Cook and Jeffrey A Berkowitz (Finnegan, Henderson, Farabow, Garrett & Dunner, LLP) published "Successful Companies Don't Just Patent Everything—They Make And Follow A Strategy".

You can't patent everything anyway. Sooner or later, as in the US with its courts, you realise that the lion's share of your patents are fake, worthless, toothless. Or in their words: "In both of the above illustrations, the companies failed to develop and implement a patent strategy. Emerging companies should concentrate on building a patent monopoly covering the most commercially important aspects of their new technologies while making efficient use of their patent dollars and the precious time of their key inventors. In short, when companies formulate their business strategy, patents should play an integral role. Patenting too sparingly or recklessly is not strategic and is not a way to generate company value."

So even a law firm that promotes software patents quite actively admits these downsides. In some cases, as in this new example of Swisscom and ASSIA, companies just cross-license and move on (wireless for the most part in this particular case/agreement, not algorithms).

So let's start with this assumption that patent maximalists have come to accept Section 101/Alice renders software patents worthless and even overzealous, very large law firms (Finnegan is one of the biggest) insist that patenting has gone too far for practical purposes. Where do they go from here? Buzzwords. We already wrote dozens of articles to that effect and over the past week we saw several new examples.

Japanese blogger Satoshi Watanabe wrote about patent trolls or feeding a patent troll in Japan for blackmail purposes. “Patent utilization” is what he (or they) use as the newest euphemism (rather than enforcement, monetisation, assertion and so on). He also alludes to "artificial intelligence (AI)-based" at the end:

“Patent utilization” has been a buzz word in Japanese IP industry. There seems to be an increasing number of companies thinking that they should make effective use of patents that haven’t been used by themselves; i.e. monetize such patents by selling or licensing them to others. Actually, a client of ours has asked me what salable or licensable patents are like.

First of all, you may need to know when a patent transaction occurs.

[...]

It's hoped that artificial intelligence (AI)-based solution will be developed.


That last part refers to how patents are managed, but it's part of a recent (past year) trend. They keep bringing up "AI". Some so-called 'IP' lawyers admitted to me that they don't even really understand what it means, yet they keep using the term. It's like a fashion.

How about this new article (4 days old) that speaks of "machine learning-base [sic] anomaly detection" in relation to new Anodot patents? George Leopold wrote about these bogus software patents being granted in the US. It's incredibly hard to believe/imagine patent courts tolerating such abstract/mathematical methods being patented as a monopoly.

To quote from the article:

Anodot, which focuses on using machine learning techniques to spot anomalies in time-series data, announced a pair of U.S. patent awards this week covering its autonomous analytics framework.

The analytics vendor said Thursday (Oct. 11) it has been granted two U.S. patents for algorithms that allow users to apply machine learning-base anomaly detection. The algorithms are designed specifically to quickly identify the source of anomalies in large data sets, then perform root-cause analysis. The approach is promoted as faster than traditional business intelligence tools or dashboards.

[...]

Anodot was launched in 2014 when its co-founders realized there was an unmet need for fast and accurate time-series analysis.


Those are software patents. It's algorithms, but they dress it all up in innovation- and novelty-sounding terms. Why did the USPTO grant such software patents? How about this new application from Apple? A lot of press about it this past week (dozens of articles), as is typical for Apple. But Apple will never sue with this patent/s, so we won't see the courts lecturing Apple on why it's patent-ineligible. If it ever gets granted in the first place...

Well, the patent office got its money anyway... and Apple got puff pieces about how it's presumably combating spam.

In other 'news', this time from JD Supra (a press release), patent law firms (Sterne, Kessler, Goldstein & Fox P.L.L.C. in this case) still try to figure out how to get bogus patents on software and nature, even if courts will reject these. From The Current State of Patent-Eligible Subject Matter:

In the wake of the Supreme Court’s Mayo and Alice decisions, uncertainty has surrounded what inventions are patent eligible in the United States. In Mayo and Alice, the Supreme Court developed a two-step test to determine patent eligibility. Step one determines if the invention is directed to a law of nature, natural phenomenon, or abstract idea. If so, the second step determines if there is an inventive concept sufficient to ensure the patent amounts to significantly more than the ineligible concept itself.[i] While this test has led to uncertainty in what inventions remain patent eligible, post-Mayo/Alice case law has begun to shed light on what is patent eligible in the United States. The current state of patent eligibility in the technology areas most impacted by the Mayo/Alice two-step are outlined below.

[...]

Software and Business Method Claims

Software and business method patents have faced significant challenges since the Mayo/Alice decisions. Software claims, are not per se ineligible, however software claims that merely gather, analyze, and output data are patent ineligible.[xii] Software claims can be patent eligible when they are directed to an improvement in the way computers operate.[xiii] Additionally, claims which recite specific limitations to overcome deficits or problems in the prior art have been found patent eligible.[xiv] Based on these holdings, to be patent eligible software claims must recite specific steps to obtain a desired result rather than recite merely the result itself.[xv]


After Alice and In Re Bilski we can pretty much assume things have changed profoundly. Sure, the patent office might still grant such patents. But what matters a lot more is whether those will be enforceable in court at any point before their expiry. The culture of patent embargoes and patent maximalism needs to end at the patent office too in order to preserve any presumption of patent validity. The USPTO continues to assess its performance using the wrong yardstick, e.g. number of patents granted. Patent maximalists are meanwhile pushing the lunacy which is computer-generated patents (we put the following articles in our daily links last week). Here's what Law 360 and IAM are suggesting:



So what they're basically saying is, let a bunch of machines manage the patent system; as if that's going to make matters any better...

Published a few days ago in the The National Law Review and another publication was this article of Christina Sperry (Mintz) and the litigation industry; under "Subject Matter Eligibility Under 35 U.S.C. ۤ 101" they admit that "AI" patents are just bogus software patents but promote these fake patents anyway. To quote the relevant part:

Subject matter eligibility for patent under 35 U.S.C. ۤ 101 has been a particularly hot topic since the 2014 Supreme Court decision in Alice Corp. v. CLS Bank Int'l. Section 101 patent eligibility has particular relevance to AI and digital health since they often involve computers and/or data processing whose mere presence, reference, or implication in claims frequently give rise to subject matter eligibility questions during patent prosecution as well as during litigation after patent issuance.

The breadth and gravity of current ۤ 101 issues has been explored elsewhere and is beyond the scope of this article. In general, Alice and subsequent lower court decisions have made it more difficult to get patents issued with claims involving computers and/or data processing. It is therefore important to consider potential patent eligibility concerns under ۤ 101 during the patent application drafting process in order to preemptively address these concerns as much as possible before the application faces any challenges during prosecution or during litigation as an issued patent.


To be quite frank, the abundance and overuse of the term "AI" by patent lawyers is a cause for concern. The only more worrying thing is seeing administrators at the EPO and USPTO adopting the term as well; they use that as a sort of synonym for software patents and we're asked to believe that they grant such patents for the betterment of society or manage patents using "AI" (they just mean things like search and inferences) to expand human understanding rather than make staff redundant, only to be replaced by vastly inferior performance.

Recent Techrights' Posts

Who really owns Debian: Ubuntu or Google?
Reprinted with permission from disguised.work
 
Dashamir Hoxha & Debian harassment
Reprinted with permission from disguised.work
Maria Glukhova, Dmitry Bogatov & Debian Russia, Google, debian-private leaks
Reprinted with permission from disguised.work
Keeping Computers at the Hands of Their Owners
There's a reason why this site's name (or introduction) does not obsess over trademarks and such
In May 2024 (So Far) statCounter's Measure of Linux 'Market Share' is Back at 7% (ChromeOS Included)
for several months in a row ChromeOS (that would be Chromebooks) is growing
Links 03/05/2024: Microsoft Shutting Down Xbox 360 Store and the 360 Marketplace
Links for the day
Evidence: Ireland, European Parliament 2024 election interference, fake news, Wikipedia, Google, WIPO, FSFE & Debian
Reprinted with permission from Daniel Pocock
Enforcing the Debian Social Contract with Uncensored.Deb.Ian.Community
Reprinted with permission from Daniel Pocock
Gemini Links 03/05/2024: Antenna Needs Your Gemlog, a Look at Gemini Get
Links for the day
IRC Proceedings: Thursday, May 02, 2024
IRC logs for Thursday, May 02, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Jonathan Carter & Debian: fascism hiding in broad daylight
Reprinted with permission from disguised.work
Gunnar Wolf & Debian: fascism, anti-semitism and crucifixion
Reprinted with permission from disguised.work
Links 01/05/2024: Take-Two Interactive Layoffs and Post Office (Horizon System, Proprietary) Scandal Not Over
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 01, 2024
IRC logs for Wednesday, May 01, 2024
Embrace, Extend, Replace the Original (Or Just Hijack the Word 'Sudo')
First comment? A Microsoft employee
Gemini Links 02/05/2024: Firewall Rules Etiquette and Self Host All The Things
Links for the day
Red Hat/IBM Crybullies, GNOME Foundation Bankruptcy, and Microsoft Moles (Operatives) Inside Debian
reminder of the dangers of Microsoft moles inside Debian
PsyOps 007: Paul Tagliamonte wanted Debian Press Team to have license to kill
Reprinted with permission from disguised.work
IBM Culling Workers or Pushing Them Out (So That It's Not Framed as Layoffs), Red Hat Mentioned Repeatedly Only Hours Ago
We all know what "reorg" means in the C-suite
IBM Raleigh Layoffs (Home of Red Hat)
The former CEO left the company exactly a month ago
Paul R. Tagliamonte, the Pentagon and backstabbing Jacob Appelbaum, part B
Reprinted with permission from disguised.work
Links 01/05/2024: Surveillance and Hadopi, Russia Clones Wikipedia
Links for the day
Links 01/05/2024: FCC Takes on Illegal Data Sharing, Google Layoffs Expand
Links for the day
Links 01/05/2024: Calendaring, Spring Idleness, and Ads
Links for the day
Paul Tagliamonte & Debian: White House, Pentagon, USDS and anti-RMS mob ringleader
Reprinted with permission from disguised.work
Jacob Appelbaum character assassination was pushed from the White House
Reprinted with permission from disguised.work
Why We Revisit the Jacob Appelbaum Story (Demonised and Punished Behind the Scenes by Pentagon Contractor Inside Debian)
If people who got raped are reporting to Twitter instead of reporting to cops, then there's something deeply flawed
Free Software Foundation Subpoenaed by Serial GPL Infringers
These attacks on software freedom are subsidised by serial GPL infringers
Red Hat's Official Web Site is Promoting Microsoft
we're seeing similar things at Canonical's Ubuntu.com
Enrico Zini & Debian: falsified harassment claims
Reprinted with permission from disguised.work
European Parliament Elections 2024: Daniel Pocock Running as an Independent Candidate
I became aware that Daniel Pocock had decided to enter politics
Publicly Posting in Social Control Media About Oneself Makes It Public Information
sheer hypocrisy on privacy is evident in the Debian mailing lists
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 30, 2024
IRC logs for Tuesday, April 30, 2024