03.26.16

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Patents Roundup: SCOTUS, U.S. Code § 101, CAFC, PTAB, and Software Patents in the Far East (Australia, Korea, Taiwan, China)

Posted in America, Asia, Australia, Law, Patents at 9:43 pm by Dr. Roy Schestowitz

Software patents are still an issue not just in East Asia but also in Australia, though not in New Zealand

Granting patents on numbers, numerical operations, logical operations and input/output

Summary: An outline of recent news regarding software patents, patent trolls, and other such aspects which have considerable impact on Free software development

SCOTUS

“The Supreme Court should review an appeals court decision,” attorneys told Bloomberg BNA, “to clear up uncertainty about patenting natural discoveries that is chilling innovation.”

One must realise that the logic of “more patents mean more innovation” is based on false reasoning and wishful thinking from self-serving patent lawyers.

“One must realise that the logic of “more patents mean more innovation” is based on false reasoning and wishful thinking from self-serving patent lawyers.”A lawyers’ site, at around the very same time, wrote that “Sequenom Throws Diagnostic Method Patents At Mercy Of Supreme Court” (this isn’t about software patents but also rather abstract patents).

“It comes as no surprise,” says this site, “that Sequenom has filed a petition for certiorari to the Supreme Court, asking the Court to review the Federal Circuit decision that upheld the district court decision that held its diagnostic method claims invalid for failing to satisfy the patent eligibility requirements of 35 USC § 101. With no relief from Congress on the horizon, this filing puts at least the near-term future of diagnostic method patents at the mercy of the Supreme Court. Will the Court agree that its § 101 jurisprudence has been taken too far, or will it decide that diagnostic methods really cannot be patented?”

“Watch patent lawyers who are vocal proponents of software patenting still moaning about Alice.”Patently-O wrote: “The discovery here was that fetal DNA can be found floating around the blood of the pregnant mother and that the fetal DNA can be selectively amplified by focusing on the paternally inherited portion of its DNA (rather than the maternally inherited). Sequenom’s patent claims two simple steps: (1) amplifying paternally inherited DNA from a plasma sample taken from a pregnant female and then (2) detecting the presence of the DNA.”

“This week,” wrote one patent lawyer. “Patents Asserted in 4 US Dist. Cts. Survived Alice/101 Challenges; DE High Ct. Rejected Mayo/Prometheus Test.”

“It’s encouraging to see the long-term effect of the Supreme Court‘s decisions in 2014.”Any patent lawyer would be delighted about such news. Watch patent lawyers who are vocal proponents of software patenting still moaning about Alice. They are incapable of patenting software after Alice and they still try to find new tricks around the new rules.

It’s encouraging to see the long-term effect of the Supreme Court‘s decisions in 2014.

Federal Circuit

Alluding to the Federal Circuit (Court of Appeals for the Federal Circuit), the home and origin of software patents, people from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP wrote about a case we covered here before. The recent Lexmark case was also touched upon again by Patently-O; that was just a few days ago. Patently-O actually covers a lot of CAFC-related matters these days [1, 2] (the latter being Mag Aerospace Industries, Inc. v. B/E Aerospace, Inc.) and this article by Dennis Crouch says that “Shaw Industries v Automated Creel Systems[1] involves several interesting issues involving inter partes review proceedings.”

“Well, actually, in many cases (often overlooked by the pro-patents circles), PTAB rightly invalidates patents erroneously granted by the USPTO.”Another newer CAFC article by Dennis Crouch says: “All three patents (all claims) were challenged in covered business method reviews and found by the PTAB to be ineligible under Section 101 (abstract ideas). In addition, two of the same patents (a subset of claims) were challenged in inter partes review proceedings, but in those cases the PTAB sided with the patentee and found the ISE had failed to prove invalidity (either obvious or anticipated).”

Well, actually, in many cases (often overlooked by the pro-patents circles), PTAB rightly invalidates patents erroneously granted by the USPTO. Let’s look at some new examples.

PTAB

As we noted here before, the relatively new PTAB is crushing many software patents. Patently-O did cover the following example several days ago, noting: “In a straightforward decision, the Federal Circuit has affirmed the PTAB’s decision that Cree’s claimed down-shifted LED invention would have been obvious in light of a combination of three prior art patents.[2] The basic problem with LED lighting is that it is easy and cheap (these days) to get blue light, but harder to produce light across the spectrum – especially reds. Cree’s patented approach used a blue LED that is wrapped in a “down-converting luminophoric medium.” The basic idea is that the blue light energy is absorbed by the medium and then released as white light. These Fluorescent and phosphorescent materials were already known and commercially available.”

Perhaps the biggest news regarding PTAB right now concerns Uniloc, which is a notorious patent troll; IAM still calls patent trolling “licensing market” (gotta love their euphemisms, as they make trolling sound so legitimate). As a trolls expert put it:

Patent that cost Microsoft millions gets invalidated

[...]

One of the oldest and most profitable patent trolls, Uniloc, has been shot down. Its US Patent No. 5,490,216, which claims to own the concept of “product activation” in software, had all claims ruled invalid by the Patent Trademark and Appeals Board (PTAB).

The process through which PTAB eliminated the patent is called an “inter partes review,” or IPR. The IPR process, created by the America Invents Act, is an increasingly popular and effective way for defendants to challenge patents outside federal courts.

The PTAB case against Uniloc’s patent was filed by Sega of America, Ubisoft, Cambium Learning Group, and Perfect World Entertainment. The board found that every claim in Uniloc’s patent was anticipated or rendered obvious by an earlier patent.

“The PTAB decision is inconsistent with two prior rulings by the Federal Circuit and with the opinions of seven patent examiners who previously upheld the validity of the ’216 patent in multiple reexaminations,” Uniloc president Sean Burdick told the Kansas City Business Journal, which reported the decision earlier this week. “Ultimately the PTAB gave undue credibility to a lone expert opinion that was authored by petitioners’ counsel. Congratulations to [opposing law firm] Erise IP for pulling wool over the eyes of the Patent Office.”

What’s noteworthy here isn’t the name of the troll or even Microsoft; it’s about PTAB killing software patents, just like a lot of courts after Alice. That’s great news. Inherently, the core issue is patent scope and software patents in particular.

Venue Act

A small step towards countering patent trolls by limiting venue shifts (a la Venue Act/VENUE Act [1, 2]) was mentioned the other day at MIP but in reference to CAFC. “The Federal Circuit ruling in Acorda v Mylan and AstraZeneca v Mylan,” MIP explained, “gives branded pharmaceutical companies more flexibility in their choice of where to file suit against generics” (as if that’s a good thing). CAFC was also mentioned by more vocal patent maximalists, who constantly bemoan the difficulty now associated with getting software patents (or successfully suing with them).

“Inherently, the core issue is patent scope and software patents in particular.”More noteworthy, however, was the mentioning of the Venue Act in corporate media (GOP-leaning). This attracted some strong reaction from Twitter [1, 2, 3]. Basically, unsurprisingly, right-wing news sites don’t like the Venue Act. “It is time to confront the bias against patent owners in patent ‘reform’ legislation,” wrote the author, later noting: “The absence of any acknowledgment that reform of the PTAB is just as pressingly important as venue reform by those pushing for the VENUE Act is a massive elephant in the room. Unfortunately, it is unsurprising. But this is only because it is the latest example of a strikingly one-sided, biased narrative of the past several years about patent “reform.””

It oughtn’t be so shocking that GOP-leaning papers such the Washington Times are against reform. We wrote about the GOP stance on patent reform many times before.

Software Patents in Australia

“It oughtn’t be so shocking that GOP-leaning papers such the Washington Times are against reform.”A country heavily influenced by the US (see trade agreements for recent evidence) apparently still allows software to be patented (we wrote a great deal about it in past years). As patent lawyers put it the other day (in International Law Office): “In the last few years three subject matters have been lurking on the fringes of patentability: methods of treatment, genes and software. The US Supreme Court has confirmed that, at least for the moment, none of these is eligible for patent protection.(1) In Australia, the High Court recently considered methods of treatment (which are generally patentable)(2) and isolated naturally occurring genes (which are not).(3) Now the High Court may have the opportunity to consider the extent to which software is properly the subject of patent protection in Australia.”

There is a software patents story coming out today. It’s coming from Patentology. It is titled “Upaid v Telstra – Here’s How We Deal With NPEs in Australia!”

To quote the article: “Upaid Systems Ltd is a ‘non-practising entity’ (NPE) – sometimes referred to as a ‘patent troll’ – which sued Australia’s largest telecommunications carrier, Telstra Corporation Ltd, back in August 2013 for the alleged infringement of two Australian patents relating to making online purchases of goods and/or services from mobile devices. More specifically, Upaid alleges that various subscription operations performed in relation to Telstra’s MOG online music streaming service (formerly Bigpond Music) infringe its patents when conducted using a mobile device. [...] As Upaid has discovered to its detriment, the Australian Federal Court Rules require substantial detail to be provided in relation to the activities said to constitute infringement. In short, in this country it is nowhere near enough to run around pointing fingers at alleged infringements on the basis that they might look, walk and quack a little bit like a claimed duck. You need to provide sufficient information, at the outset, to inform the accused infringer fairly precisely of the case they will be required to answer.”

“Yes, that’s what the US has been plagued with, and what UPC threatens to bring to Europe. Patent trolls just love software patents. Everyone is rendered sue-able (or possible to secretly settle with).”What we have here is a patent troll in Australia using software patents. Sounds familiar? Yes, that’s what the US has been plagued with, and what UPC threatens to bring to Europe. Patent trolls just love software patents. Everyone is rendered sue-able (or possible to secretly settle with).

Software Patents in China

International Law Office has this analysis from Taiwan about patent assignment and other such matters. China is increasingly relying on patent bubbles to put up or make up an illusion of growth (or piles of paper). It’s the mistake the USPTO has made by lowering standards. Too many patents are now suspect and the patent system simply lost credibility. Courts overrule it aplenty.

Take note of this new article from Lexology whose headline says “China Again Fastest-growing Origin for EPO Applications”. This is based on EPO lies (Mandarin-only patents), as we noted here before [1, 2]. As this new comment from the same day put it, “I can rely on EPO Examiners. But can I rely on EPO management? I’m not sure.” They have different goals; one group wishes to do proper examination and the latter — inflation, ‘growth’ (however it gets measured), and so on. One group is scientific (like climate change scientists), whereas the latter is recklessly capitalistic (like oil companies) without boundaries, without long-term thinking.

“China is increasingly relying on patent bubbles to put up or make up an illusion of growth (or piles of paper). It’s the mistake the USPTO has made by lowering standards. Too many patents are now suspect and the patent system simply lost credibility. Courts overrule it aplenty.”Well, patent lawyers just want patents in China (more money for them because it’s a big country), so in Lexology on Saturday we found this article titled “Patenting Software in China: What Do You Need to Know”. This also covers the EPO, despite software patents not being allowed in Europe. To quote: “This article provides practical tips of protecting software inventions in China, as well as discussions with trends in practice and comparisons among different patent offices, the State Intellectual Property Office (SIPO), European Patent Office (EPO) and the United States Patent and Trademark Office (USPTO).”

Software Patents in Korea

Patent troll MPEG-LA, according to this article from IAM (very softly-worded when it comes to trolls), gets patent tax money in Korea (indirectly). Again, this is all about software patents. Wherever software patents are foolishly being tolerated the patent trolls quickly flock and tax everyone. It’s detrimental to whole economies and the tax is overlooked by almost everyone.

“Wherever software patents are foolishly being tolerated the patent trolls quickly flock and tax everyone.”Isn’t it sad that the US, which made software patenting possible in the first place (CAFC), is still influencing other countries on that matter, having them blindly accept software patents simply because the US does, as if US law is now universal law?

“America is much more than a geographical fact. It is a political and moral fact – the first community in which men set out in principle to institutionalize freedom, responsible government, and human equality.”

Adlai Stevenson

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