Bonum Certa Men Certa

USPTO Ignores a Lot of Cases Against Software Patents to Justify Resumption of More Software Patenting

Just a money-making operation where corporate lobbying is more than welcome

USPTO and money



Summary: The US patent system (USPTO) is so obsessed with granting as many patents as possible -- even bogus patents in areas that are no longer patent-eligible -- that its guidelines are further perturbed and whose appeals board is massively overwhelmed/overworked/understaffed

THE USPTO has been a huge booster of software patents for a long time. For the USPTO it's a growth (profit) area, so it's unwilling to compromise on the subject. As we have repeatedly shown for years, the USPTO begrudgingly (at best, if at all) adopted the Alice decision and it continued to grant a lot of bogus software patents (which PTAB helped confirm are bogus after IPRs).



Regarding IPRs, which essentially trash a lot of software patents that the USPTO erroneously (if not fraudulently) grants to increase revenue, Patently-O had this to say the other day, shedding light on key figures:

The Patent Office routinely publishes statistics on IPR and CBM proceedings, but their methodology suggests that the petition institution rate is lower than it really is.

Inter partes review and covered business method review have undoubtedly changed patent litigation. No patent assertion campaign or defense strategy is complete without considering the implications of these AIA procedures.

The Patent Office publishes statistics on these new AIA trials roughly once a month. Practitioners can easily see how many petitions are filed in various technology areas, as well as how often claims survive or are canceled. They say that a picture is worth a thousand words, and this visual and easy-to-read resource gives stakeholders a quick sense of how the new tribunal is affecting patent law.

But as Mark Twain once said, “[f]acts are stubborn things, but statistics are more pliable.” In publishing these statistics, the PTO has made choices in methodology that may underreport the institution rate of IPR and CBM proceedings.


To put it less politely, the USPTO is lying, as usual, in order to glorify itself. As the USPTO is not a private entity, this is totally unacceptable. According to MIP (this morning), "PTAB designates five decisions as precedential" and to quote the summary: "A total of eight Patent Trial and Appeal Board decisions have now been designated precedential. At the PTAB Forum 2016, acting PTAB chief judge Nathan Kelley provided detail on the process of approving precedential decisions" (PTAB, the Appeal Board -- much like the Boards of Appeal at the EPO -- may be the only element that's not dysfunctional due to dependence and fear from above).

"Basically, as everyone ought to know by now, virtually all if not the overwhelming majority of software patents that go to a high(er) court or PTAB get invalidated."Suing a government for $1 billion over patent infringement (surveillance) may sound mad, but here is another new report from MIP. It's about PTAB again: "The Department of Justice has filed petitions at the Patent Trial and Appeal Board for the second time, targeting the patents involved in a suit brought by Discovery Patents and 3rd Eye Surveillance that seeks $1 billion in compensation from the US government" (yes, that's $1,000,000,000).

Basically, as everyone ought to know by now, virtually all if not the overwhelming majority of software patents that go to a high(er) court or PTAB get invalidated. Small companies cannot afford to defend themselves from such patents because the process of reassessment or court proceedings is expensive (prohibitive costs with risk and no assurance of legal fees compensation/reimbursement).

"In fact, the USPTO is again latching onto one single pro-software patents decision (reaffirming its desired bias), in spite of a vast number of decisions (even at CAFC) against these patents."Adding insult to injury, citing the over-hyped Enfish v Microsoft decision [1, 2, 3], watch how the USPTO sneakily changes its guidelines. To quote Patently-O: "The Enfish case is important in the way that it gives teeth to step-one of the Alice/Mayo test for subject matter eligibility. Notably, the unanimous panel of Judges Moore, Taranto, and Hughes (author) held that neither the software-implemented data structure nor its method of creation were “to be directed to a patent-ineligible abstract idea” and thus did not pass Step-1 of Alice/Mayo. Prior courts usage of the “gist” analysis for Step-1 left many of us with the feeling that almost all inventions could be boiled-down to an ineligible concept. Enfish rejects that conclusion and instead held that that Step-1 is designed as a meaningful test."

"The USPTO rapidly turns into a joke and the numbers suggest so too."But what the Supreme Court said has not changed. In fact, the USPTO is again latching onto one single pro-software patents decision (reaffirming its desired bias), in spite of a vast number of decisions (even at CAFC) against these patents.

Consider the fact that the former Director of the USPTO is now a lobbyist for software patents, paid for this lobbying by some of the largest self-serving proponents of software patents.

The USPTO rapidly turns into a joke and the numbers suggest so too. Low patent quality has had it subjected to occasional ridicule in the media and it risks becoming a laughing stock worldwide. The USPTO has become a grossly overpriced registration/filing system (more so than an examination office). The public pays the price for all the resultant damage and it is obvious who gains.

Recent Techrights' Posts

Sven Luther, Lucy Wayland & Debian's toxic culture
Reprinted with permission from disguised.work
 
Chris Rutter, ARM Ltd IPO, Winchester College & Debian
Reprinted with permission from disguised.work
[Video] Microsoft Got Its Systems Cracked (Breached) Again, This Time by Russia, and It Uses Its Moles in the Press and So-called 'Linux' Foundation to Change the Subject
If they control the narrative (or buy the narrative), they can do anything
Links 19/04/2024: Israel Fires Back at Iran and Many Layoffs in the US
Links for the day
Russell Coker & Debian: September 11 Islamist sympathy
Reprinted with permission from disguised.work
Sven Luther, Thomas Bushnell & Debian's September 11 discussion
Reprinted with permission from disguised.work
G.A.I./Hey Hi (AI) Bubble Bursting With More Mass Layoffs
it's happening already
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 18, 2024
IRC logs for Thursday, April 18, 2024
Coroner's Report: Lucy Wayland & Debian Abuse Culture
Reprinted with permission from disguised.work
Links 18/04/2024: Misuse of COVID Stimulus Money, Governments Buying Your Data
Links for the day
Gemini Links 18/04/2024: GemText Pain and Web 1.0
Links for the day
Gemini Links 18/04/2024: Google Layoffs Again, ByteDance Scandals Return
Links for the day
Gemini Links 18/04/2024: Trying OpenBSD and War on Links Continues
Links for the day
IRC Proceedings: Wednesday, April 17, 2024
IRC logs for Wednesday, April 17, 2024
Over at Tux Machines...
GNU/Linux news for the past day
North America, Home of Microsoft and of Windows, is Moving to GNU/Linux
Can it top 5% by year's end?
[Meme] The Heart of Staff Rep
Rowan heartily grateful
Management-Friendly Staff Representatives at the EPO Voted Out (or Simply Did Not Run Anymore)
The good news is that they're no longer in a position of authority
Microsofters in 'Linux Foundation' Clothing Continue to Shift Security Scrutiny to 'Linux'
Pay closer attention to the latest Microsoft breach and security catastrophes
Links 17/04/2024: Free-Market Policies Wane, China Marks Economic Recovery
Links for the day
Gemini Links 17/04/2024: "Failure Is An Option", Profectus Alpha 0.5 From a Microsofter Trying to Dethrone Gemini
Links for the day
How does unpaid Debian work impact our families?
Reprinted with permission from Daniel Pocock
Microsoft's Windows Falls to All-Time Low and Layoffs Reported by Managers in the Windows Division
One manager probably broke an NDA or two when he spoke about it in social control media
When you give money to Debian, where does it go?
Reprinted with permission from Daniel Pocock
How do teams work in Debian?
Reprinted with permission from Daniel Pocock
Joint Authors & Debian Family Legitimate Interests
Reprinted with permission from Daniel Pocock
Bad faith: Debian logo and theme use authorized
Reprinted with permission from Daniel Pocock
Links 17/04/2024: TikTok Killing Youth, More Layoff Rounds
Links for the day
Jack Wallen Has Been Assigned by ZDNet to Write Fake (Sponsored) 'Reviews'
Wallen is selling out. Shilling for the corporations, not the community.
Links 17/04/2024: SAP, Kwalee, and Take-Two Layoffs
Links for the day
IRC Proceedings: Tuesday, April 16, 2024
IRC logs for Tuesday, April 16, 2024
Over at Tux Machines...
GNU/Linux news for the past day