As covered in an earlier post last weekend, potential 'satellites' of Microsoft are still attacking Microsoft's biggest rivals using software patents.
Data Engine Technologies (DET) filed an infringement suit against Google in the District of Delaware contending infringement of U.S. Patent Nos. 5,590,259, 5,784,545, 6,282,551, and 5,303,146. Google responded with a Rule 12(c) motion arguing that the patents are directed to patent-ineligible subject matter under 35 U.S.C. ۤ 101. The District Court agreed and invalidated the patents. DET appealed.
In Alice Corp. v. CLS Bank Int'l, the Supreme Court set forth a two-part test to determine whether claims are directed to patent-eligible subject matter under ۤ 101. One must first decide whether the claim at hand is directed to a judicially-excluded law of nature, a natural phenomenon, or an abstract idea. If so, then one must further decide whether any element or combination of elements in the claim is sufficient to ensure that the claim amounts to significantly more than the judicial exclusion. But generic computer implementation of an otherwise abstract process does not qualify as "significantly more," nor will elements that are well-understood, routine, and conventional lift the claim over the ۤ 101 hurdle.
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I have to agree with PatentlyO, which viewed as “fairly questionable” the reasoning under which the notebook tab was the linchpin for patent-eligibility. And if you contrast the surviving Tab Patent claims with the claims that were held ineligible, this case certainly seems to equate claim breadth with patent-ineligibility – perhaps confirming that, as many of us suspect, an “abstract idea” is simply a really broad idea. In any event, decisions like this highlight the not-infrequent anomaly that claims can survive novelty and obviousness challenges, but fail on patent-eligibility. And as we saw here, the present court’s analysis, stripped down to what it really was, had a lot to do with obviousness.
Some claims directed to a computer spreadsheet are patent-eligible, while others are not, said the Federal Circuit in Data Engine Techs. LLC v. Google LLC (Fed. Cir. 2018) (precedential). The District of Delaware had granted a Rule 12 judgment on the pleadings of 35 U.S.C. ۤ 101 invalidity of claims of U.S. Patent Nos. 5,590,259; 5,784,545; 6,282,551; and 5,303,146; the Federal Circuit thus reversed-in-part, affirmed-in-part, and remanded.
The three surviving patents (with the exception of one independent claim which had a patentable dependent claim), the ’259, ’545, and ’551) were dubbed the “Tab Patents.” The Tab Patents purportedly solved the problem that “complex commands” were required by “prior art three-dimensional or multipage electronic spreadsheets.” The patent-eligible solution was “a notebook-tabbed interface” to provide users with easy navigation through three-dimensional spreadsheet. Why? Because the notebook tab “allowed computers, for the first time, to provide rapid access to and processing of information in different spreadsheets, as well as easy navigation in three-dimensional spreadsheets.”
On October 9, 2018, the Federal Circuit added to its growing collection of favorable Alice step one rulings1 by reversing portions of a decision from the U.S. District Court for the District of Delaware concerning an invention aimed to streamline the technology of electronic spreadsheets—a technology that has been around for twenty-five years. See Data Engine Technologies LLC v. Google LLC, No. 2017-1135, 2018 U.S. App. LEXIS 28412 (Fed. Cir. Oct. 10, 2018). The Federal Circuit's decision may be viewed as a not-so-gentle reminder to patent applicants and drafters alike to continue to draft software patent claims narrowly and with specificity if they wish to survive patent eligibility challenges under 35 U.S.C. €§ 101 and Alice step one.
The court commenced its opinion with a robust overview of Data Engine's patents-at-issue: U.S. Patent Nos. 5,590,259; 5,784,545; and 6,282,551 (the "Tab Patents") and U.S. Patent No. 5,303,146 (the "'146 Patent"). See Data Engine, at *2-12. The Tab Patents are entitled "System and Methods for Improved Spreadsheet Interface With User-Familiar Objects." Id. at *1-2. In its detailed review of the Tab Patents, the court noted that they claim "systems and methods for making complex electronic spreadsheets more accessible by providing familiar, user-friendly interface objects—specifically, notebook tabs—to navigate through spreadsheets while circumventing the arduous process of searching for, memorizing, and entering complex commands." Id. at *2. In essence, the Tab Patents aim to overcome some of the challenges users encountered when navigating electronic spreadsheets due to complex menu systems that "diminished the utility and ease of use of this technology." Id. at *3. In an attempt to offer a solution to the challenges of prior art multipage electronic spreadsheets, the Tab Patents are directed to "implementing a notebook-tabbed interface, which allows users to easily navigate through three-dimensional electronic spreadsheets" and "conveniently flip through several pages of notebook to rapidly locate information of interest." Id. at *4-5. The '146 Patent is entitled, "System and Methods for Improved Scenario Management in an Electronic Spreadsheet" and is directed to tools that permit "electronic spreadsheet users to track their changes" automatically, as opposed to manually, when testing a multitude of modeling scenarios. Id. at *10-11.
"This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing.""The patent owner," he later added, "tried to rely on two Federal Circuit decisions, Core Wireless Licensing S.A.R.L. v. LG Electronics, Inc. (2018), and Visual Memory LLC v. NVIDIA Corp. (2017), as well as a recent district court case. But these cases were distinguishable..."
We covered this before. The above comes from a blog that advocates software patents. Generally speaking, software patents are the joke of all jokes. Not innovation at all. But lobbying from patent law firms has made the unthinkable reality. Bieneman accepted defeat when he wrote about another more neglected case (because it's a district court): "Agreeing that patent claims “are directed to the abstract idea of facilitating cross-marketing relationships and fail to add any inventive concept” under 35 U.S.C. €§ 101 and the Alice/Mayo abstract test, Delaware’s Judge Stark granted a Rule 12(b)(6) motion to dismiss a complaint alleging infringement of claims of U.S. Patent No. 8,768,760. DiStefano Patent Trust III, LLC v. LinkedIn Corp., C.A. No. 17-1798-LPS-CJB (D. Del. Sept. 28, 2018)."
"OIN cannot do anything about such a racket."Why was such a ridiculous patent granted in the first place? The headline should be a "duh" moment: "Linking Web Pages to Each Other Not Patent-Eligible" (based on prior art too, not just obviousness and abstractness).
As the above (main) story shows, however, merely adding tabs to spreadsheets is still considered innovative. The high court considers or determines this to be patent-eligible. This is a problem. It impacts LibreOffice, OpenOffice etc. because these too have tabbing. Will the troll go after them too while Microsoft claims to have reached a "truce" and looks the other way? The only known 'cure' is buying Microsoft 'protection' in the form of "Azure IP Advantage" [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21] -- a racket that extends to trolls Microsoft can control. OIN cannot do anything about such a racket. ⬆