09.25.16
Software Patents Propped Up by Patent Law Firms That Are Lying, Further Assisted by Rogue Elements Like David Kappos and Randall Rader (Revolving Doors)
It’s not alleged infringers who resort to foul play but those who game the system to classify everyone and everything “infringer” (so as to tax everyone and everything)
Photo from Reuters
Summary: The sheer dishonesty of the patent microcosm (seeking to bring back software patents by misleading the public) and those who are helping this microcosm change the system from the inside, owing to intimate connections from their dubious days inside government
“The district court found all of Sprint’s asserted claims invalid as indefinite under 35 U.S.C. § 112, ¶ 2.”
This is one among various new stories which speak of the tightening of patent scope in the USPTO or outside of it, i.e. the kind of stories that patent law firms don’t want the public to see. It’s not good for lawyers’ business. The stories patent lawyers refuse to cover are notably stories where CAFC smashes software patents to pieces with Alice (or §101) as the basis (it happens almost all the time). How can they overlook so many cases which involve either PTAB or the courts? Are they that biased and dishonest? Yes, apparently they are. Here is another case covered this past week by Patently-O. It says that CAFC “affirms that Affinity’s challenged claims invalid as directed to an abstract idea. when “stripped of excess claim verbiage”, Claim 1 of U.S. Patent No. 7,970,379 “is directed to a broadcast system in which a cellular telephone located outside the range of a regional broadcaster (1) requests and receives network-based content from the broadcaster via a streaming signal, (2) is configured to wirelessly download an application for performing those functions, and (3) contains a display that allows the user to select particular content.” Slip opinion.”
“Even today, on a weekend, McRO still pops up in news feeds.”A few articles that we mentioned before, e.g. [1, 2], continue to resurface in news feeds along with others (new ones [1, 2, 3, 4]), serving to distract from cases like the above. The patent microcosm in the US is still trying to resurrect software patents and misleading or selective coverage seems to have become the means, as was the case earlier this year with Enfish. The cherry-picking involves even two patent lawyers at Watchtroll — a site which blasts the UN for what it calls an “Attack on Patents”, dubbing the UN’s report “fundamentally flawed” because it’s not good for maximalists. We’re not sure whether to laugh or cry because in the eyes of these people patent scope is just a nuisance or a travesty, rather than the thing which serves to legitimise the patent system and sometimes even protect investment in research (not the case when it comes to particular domains). At the middle of the month we said that software patenting proponents can go on for weeks milking McRO [1, 2] and this is exactly what is still happening (for nearly a fortnight now). Even today, on a weekend, McRO still pops up in news feeds. Why just McRO and why not the many other CAFC cases which deemed software patents invalid? That’s part of their propaganda tactics. It’s sad and we challenge anyone out there to prove that it’s untrue.
“Just more wishful thinking from patent maximalists looking for the right moment to stack statistics and issue some self-serving, deceiving statements.”A patent attorney who promotes software patents (and confronted yours truly on the subject before hiding behind a block) relies on small sample set of just 4 (yes, four!) to lie about the status quo. The other day he wrote: “Over the past 2 weeks, District Courts have denied motions to dismiss patent infringement cases based on 101/Alice 3X and granted 1X.”
Based on that tiny sample set he said: “We may be seeing the beginning of the end of the patent slaughter by Alice. It will take awhile for the USPTO to catch up.”
Are these patents (on software) coming back? Not by a long shot. Just more wishful thinking from patent maximalists looking for the right moment to stack statistics and issue some self-serving, deceiving statements. Same as Team UPC (see proponents of the UPC having a go again this weekend, e.g. in the IP Kat‘s comments [1, 2, 3], copying in their Google Plus posts into IP Kat while repeating the old tired talking points).
“They hope to attract more business, i.e. patent applications, litigation, etc.”The patent microcosm (both in the EU and the US) continues to lobby for its own interests and lies about all sorts of things. This leads us to the assumption that patent lawyers can be dishonest to the extreme and that their assessments of the status quo are more like shameless self-promotion, not objective advice. They pretend not to see what they prefer not to see. They are not helping clients, they are misleading them. They hope to attract more business, i.e. patent applications, litigation, etc.
The McRO hype one sees in the media this month is in vain; it was the same with Enfish. It barely changed anything at all. Even proponents of software patents (for many years now) — those who do not necessarily gain financially from them (as they just write about the topic) — go with the headline “Despite the CAFC’s recent 101 decisions don’t expect a deal frenzy or rapid rises in patent values”. To quote this article from the end of last week:
Over the summer, the Court of Appeals for the Federal Circuit (CAFC) issued three decisions in software patent cases which, collectively have resolved some of the questions hanging over just what is eligible for patent protection. The most recent decision, McRO (dba Planet) v Bandai Namco Games America which was issued last week, has made arguably the biggest impression on the patent-owning community. Microsoft’s IP head Erich Andersen declared in a blog post that the decision “strengthened the law related to software patent eligibility under Section 101 of the Patent Act”.
Now bear in mind that’s what IAM says. It is typically amplifying Microsoft and their former ‘IP’ people (heck, their entire online system is heavily/purely Microsoft-based, which is rather unusual in this area of computing). Even IAM does not believe that McRO is going to change much. Regarding the person they cite, we have mentioned the above from Erich Andersen at least thrice since the McRO decision, noting that it proves just how much Microsoft pushes for software patents (even paying a lobbyist, David Kappos, for this purpose). Has David Kappos already registered as a corporate lobbyist? If not, he should. It would embarrass the USPTO for sure, but disclosure requirements for public officials are imperative. Is the USPTO’s pension plan so appalling that former officials need to turn into lobbyists for money (corrupting influence)?
“Even IAM does not believe that McRO is going to change much.”Speaking of corrupting influence, Randall Rader, the corrupt CAFC judge (we wrote about it before), joins the industry after he left (or was ejected) in disgrace. Systemic corruption doesn’t get any worse than this…
Here is what IAM wrote about the subject:
It’s all happening at China’s latest high-tech darling LeEco – one of the country’s fastest growing brands. Recently, it has pulled off a series of apparent coups as it continues to shore up its IP credentials ahead of expansion at home and abroad. But it also seems that one high-profile name has left the company after a matter of months.
Randall Rader, former chief judge of the US Court of Appeals for the Federal Circuit and one of the world’s most renowned IP jurists, signed a “strategic cooperative agreement” with LeEco while visiting the company’s headquarters in Beijing, according to a report yesterday from Beijing-based IP agents firm Sanyou.
Speaking to IAM, a spokesperson for LeEco’s IP department confirmed that Rader will be formally collaborating with the firm, but could not give further details; so, we’ll have to wait for more information on his role. When Rader quit the CAFC back in June 2014, China, and the Asia-Pacific region more broadly, featured significantly in his post-retirement plans. What exactly he will bring to the company isn’t clear. Perhaps his participation points to a belief on the part of LeEco management that they could potentially be involved in a lot of litigation once they enter the US market in earnest. Alternatively (or additionally), Rader is well-known as an IP teacher, so could be working with LeEco IP personnel to bring them up to speed with key international issues and doing in-depth training.
Recall articles of ours like "The Corrupt Judge Rader (of CAFC) Still Pursuing Bad (More Aggressive) Patent System in the US" and "Judge Randall Rader Redefines “Patent Troll”". Expect to hear more about this scandalous figure in years to come, this time due to his capacity inside the private sector (like revolving doors). █
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