08.21.15

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Alice v. CLS Bank (the Alice Case/§101) Continues to Crush Software Patents in the United States

Posted in America, Law, Patents at 4:09 pm by Dr. Roy Schestowitz

One important case has put potentially hundreds of thousands of software patents in a mass grave

Manchester cemetery

Summary: Patent scope in the United States continues to be narrowed down as more software patents get their wings clipped

“US Pat 6,326,978, Display for selectively rotating windows,” wrote Patent Buddy was “Killed by CAFC” (using Alice as precedent).

This is consistent with the outcome of Alice (Alice v. CLS Bank at SCOTUS level) as we have covered it in the past few months [1, 2, 3, 4, 5].

Despite all this, patent lawyers say that “US software patent suits being filed at higher rate than in 2013″. To quote their sources: “An analysis of patent litigation by Managing IP using the Docket Navigator database has revealed that software patent lawsuit filing is not only up on 2014, but has rebounded to exceed the levels in 2013.

“When Managing IP last carried out this analysis in December 2014, the figures revealed a plunge in software lawsuit filing. This was attributed to the Supreme Court’s Alice v CLS Bank ruling on June 19, which held that merely claiming an abstract idea is insufficient to establish patent eligibility.”

Irrespective of the number of lawsuits, many of them are lost (legal toll becoming a burden to the plaintiff) because of Alice; that is very important. Patent lawyers are trying to convince their existing and prospective clients to keep patenting software, so they only tell part of the whole story.

“Patent scope is clearly a key problem.”It is clear that swpats (software patents’ shorthand) continue to collapse in the United States and this month is no exception. Examples continue to be covered, just not by media of patent lawyers (they lie by omission, as we have explained before).

“CAFC Refused to Re-Hear Case,” wrote Patent Buddy, “First Patent Kill by Alice” (the latest such example).

Here is some analysis which says: “In its first substantive application of Alice v. CLS Bank in 2015, the Federal Circuit has once again shot down claims for not meeting the patent-eligibility requirements of 35 U.S.C. § 101.”

When it comes to the USPTO, which adapts to these developments slowly but surely, a patent lawyer in London says that the judicial exceptions are now very broad.

Patent scope is clearly a key problem. It’s not about patent trolls, however they’re defined. Some sites continue to focus on “Companies Sued The Most Over Patents In 2015″ (without scaling for the size of companies, hence serving as propaganda that frames large corporations as the biggest victims), but we all know that the patents themselves, not the users thereof or the target of lawsuits, open the door to misuse, abuse, and anti-competitive behaviour, as our previous post demonstrated (Apple versus Android).

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2 Comments

  1. Hans Micheelsen said,

    August 22, 2015 at 12:38 am

    Gravatar

    This is great news.
    But please explain me why the patent still stands as valid when I look up the patent in http://www.google.com/patents/US6326978.

    Dr. Roy Schestowitz Reply:

    I’m not sure how Google maintains its database (I don’t think it’s directly derived in real time from the USPTO’s database, hence it is actually a copy), but it’s possible that either Google or the USPTO have not yet updated their database. Also, I don’t know how they deal with invalidation (delisting/flagging/other), so the existence of the page at Google probably doesn’t refute what courts have agreed on. Either way, this patent is one among several (at least two dozen by my count this year) that gets treated like that.

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