08.25.16

Gemini version available ♊︎

PTAB Emerges as Hero of USPTO Because Quality of Patents Improves, Software Patents Are Effectively Dead (or Dying Once Reassessed)

Posted in America, Patents at 2:20 pm by Dr. Roy Schestowitz

A reminder of why the EPO‘s boards of appeal should be broadened, not squashed/scuttled/exiled

David Ruschke

Summary: With help from the Patent Trial and Appeal Board (PTAB) — not just patent courts — software patents drop like flies by the thousands

TECHRIGHTS is gratified to see a decade of activism and long-sought reforms coming to fruition. A decade ago we could probably be called “crazy” for suggesting that software patents would one day be kaput even at the USPTO. But it’s actually happening and proponents of software patents are panicking (even writing “ALICE” in all CAPS or resorting to very old articles that are somehow supportive of their argument). No longer can they make a living by taxing software developers like yours truly and millions of people all around the world. Whatever one’s opinion might be on software patents, statistics show very clearly that the overwhelming majority of software developers reject them outright.

“Whatever one’s opinion might be on software patents, statistics show very clearly that the overwhelming majority of software developers reject them outright.”“Reading the Federal Circuit’s tea leaves on software patentability” is a new article whose summary introduces Alice: “In June 2014, the U.S. Supreme Court issued its Alice Corp. v. CLS Bank decision, finding that a computer-implemented, electronic escrow service was a non-patentable abstract idea.”

From the body of the article: “Until two years ago, software was generally patentable in the United States. Section 101 of the Patent Act governs what subject matter is patent eligible, excluding among other things abstract ideas from being patented.

“But in June 2014, the U.S. Supreme Court issued its Alice Corp. v. CLS Bank decision, finding that a computer-implemented, electronic escrow service was a non-patentable abstract idea. The Court held that that merely requiring “generic computer implementation” failed to transform an otherwise abstract idea into a patent-eligible invention.”

“We previously wrote about several Android applications that got axed (wiped off the face of the Earth) because of software patents.”Well, the Court of Appeals for the Federal Circuit (CAFC) has had to obey what the highest possible court said, even begrudgingly. That’s good for software developers, not necessarily FOSS developers but all developers in every country. “If you’re curious,” wrote a person on this new article about FOSS in Android, for lack of features “the reason is software patents.”

We previously wrote about several Android applications that got axed (wiped off the face of the Earth) because of software patents. Once they received a lawsuit threat, developers chose an immediate retreat. How does that promote/advance science and technology? It actually accomplishes the very opposite.

Deciding on matters like software patentability without even knowing how programming works and how computers work is outrageous, but it happens all the time. It has in fact become the norm. The following new article, which is behind a paywall, is titled “Patent Judges Should Be Scientists, Too” (Wall Street Journal). It says: “Patents are the lifeblood of biotechnology, the force that motivates companies to develop innovative medical treatments and bring them to market. The trouble is that these patents must be enforced in a court system that isn’t set up to adjudicate highly technical matters—resulting in rulings that seem arbitrary or even scientifically suspect.”

“They can discern or tell apart innovation from junk.”That is often true and applicable when it comes to copyrights in relation to code (see for example Oracle’s case against Google). At PTAB, by contrast, the chiefs are scientists, so no wonder they toss patents in the trash all the time. They can discern or tell apart innovation from junk.

MIP has a new article about PTAB’s chief judge Ruschke. Here is the part which is not behind a paywall:

In a call with reporters, the Patent Trial and Appeal Board chief judge said the number of judges now is enough, praised the impact of submitting expert declarations with preliminary responses, and said the Board was open to going beyond the 12-month statutory deadline for issuing final written decisions

David Ruschke, who took over as chief judge of the Patent Trial and Appeal Board (PTAB) in May, is satisfied with both the number of quality of judges he has at the Board. Ruschke previously managed the intellectual property portfolio of Medtronic’s CSH unit.

“The number of our judges that we have now at 270 is essentially where we are going to be at going forward,” he told reporters on a conference call. “That groups of judges is going to be providing I think a wonderful basis for the PTAB going forward.”

PTAB has been a leading enforcer of Alice (it’s a lot quicker than clueless, technology-illiterate courts) and patent lawyers hate it. They call it a “death squad”. Here is a patent lawyers’ advocacy site, IAM, saying what most recently happened at PTAB: “For the third time in as many post-grant reviews decided by the Patent Trial and Appeal Board (PTAB), the PTAB has declared a patent to be invalid based on the legal framework established in the 2014 Supreme Court decision in Alice Corporation Pty Ltd v CLS Bank International.”

Looking at another patent lawyers’ site, people are visibly upset at Alice. One of them wrote:

You must live in a different universe. The Supreme Court has been down right hostile to the CAFC.

One only has to read the fractured In re Alice decision (prior to the Supreme Court rewriting of law), to see what a mess the Supreme Court has made in its pursuit of power.

These are “captive patent courts,” Benjamin Henrion responded. Here is another comment:

The following link also supports the idea of tensions between the Supreme Court and Federal Circuit: http://www.abajournal.com/magazine/article/tug_of_war_over_interpretations_of_patent_law_continues_between_federal

They seem to be begging for some scandal that can somehow bring software patents back to life. Here is what Patently-O wrote about CAFC a few days ago: “Earlier this year, the Federal Circuit in a 2-1 panel decision in In re Queen’s University held there was a privilege over communications between a patent agent and client with respect to patent prosecution. That decision is here. I gave a talk earlier this year about how I think this case creates some risks even if it is followed, and the powerpoint for that talk is here.”

“In the above cases, the Federal Circuit does not deal with software patents, but when/if it does, then over 90% of the time it will throw them away.”PowerPoint is Microsoft lock-in, but in another new Patently-O post CAFC got mentioned in relation to OtterBox. To quote: “A substantial portion of the Federal Circuit’s appellate involve customs disputes stemming from the Court of International Trade (CIT). [...] In interpreting the statute, the Federal Circuit has taken the approach of construing HTSUS terms according to “common and commercial meanings, which we presume are the same.” Although not required by the statute, the court has also taken to relying upon the explanatory notes in the World Customs Organization tariff schedule to aid its interpretation. [...] In siding with OtterBox, the federal circuit stepped through Heading 4202 and found, inter alia, that the OtterBox cases would only fit as “similar containers,” but that they were not really similar. The important distinction is that OtterBox cases are designed so that the device is fully functional while in the case – that is not true for any of the cases listed in the heading.”

In the above cases, the Federal Circuit does not deal with software patents, but when/if it does, then over 90% of the time it will throw them away. This clearly bothers the software patents proponents, who as usual resort to BASCOM and Enfish (the few and rare exceptions]. Alluding to BASCOM and Section 101, Watchtroll writes somewhat of a rant. It starts innocently enough. “Last week the Patent Public Advisory Committee (PPAC) held its quarterly meeting at the United States Patent and Trademark Office (USPTO). These quarterly meetings give those on PPAC an opportunity to be brought up to speed about what is going on inside the USPTO, and to ask questions of various senior officials,” Watchtroll writes. But then, this Watchtroll who stoops very low in his attacks on PTAB ended up concluding with: “Could the Patent Office address this differently? Yes. Is the way Patent Office senior officials are addressing 101 in the guidance incorrect or outside of the envelope of reasonableness? No. Is the way examiners are applying 101 in keeping with the guidance? Absolutely not. Is this one big mess? You bet!”

“Software patents are a dying breed of patents.”So, doing the right thing is “one big mess”. Right…

The patent microcosm (mostly lawyers) just keeps lobbying the USPTO in order to make it their eternal vassal on matters such as patent scope. They just try to undermine Alice rather than accept the decision and move on. They even got Kappos in lobbying mode, utilising his connections (he is the former Director of the USPTO) to throw away Alice and attempt to restore software patenting. Another new example of this reluctance to accept the new formality can be seen in this tweet that says “Drafting claims: preambles? Dangerous. Just analyzed BASCOM: preamble may establish what a claim is “directed to” (abstract idea) for Alice.”

No matter how artful they try to be in interpreting Alice, the statistics speak for themselves, both at PTAB and at CAFC. Software patents are a dying breed of patents. Sooner or later, once challenged sufficiently, all ‘pure’ software patents turn out to be abstract.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New


  1. Mobile OS Market Share (as Judged by Web Access) More Than Double All Versions of Windows Combined

    With the share of Windows falling (the latest propaganda/talking point from Microsofters singles out Vista 11 to claim “growth”) it might not be long before Android and iOS alone have 3 times more in market share than Windows; Microsoft-sponsored media almost never points this out, nor does it mention that Bing fell below 3% globally (Bing also has many LAYOFFS), instead focusing on some “Bing” chatbot whose market share is negligible… and rapidly falling as people lose interest



  2. Links 02/04/2023: GNUnet 0.19.4 and Pine64/RISC-V SoC

    Links for the day



  3. Geminispace: Still Growing, Still Community-Controlled

    Almost 2.4k live (online) capsules are observed by Lupa right now (there are more, but Lupa cannot see them all), with just 31 more to go before this 2,400 milestone



  4. Microsoft Layoffs in the Buzzwords Department

    Microsoft hired or acquired (acquisition-based hiring, which enables faking growth, faking wealth when no actual money changes hands, and sometimes debt-loading) a lot of “trash” and “hype”; now it pays the price



  5. Links 01/04/2023: Bloomberg Places Stake in Free Software, Microsoft Banned and Slammed for Antitrust Abuses

    Good news



  6. Links 01/04/2023: Red Hat Turning 30

    Links for the day



  7. Links 31/03/2023: Mozilla Turns 25 and OpenMandriva 23.03

    Links for the day



  8. IRC Proceedings: Friday, March 31, 2023

    IRC logs for Friday, March 31, 2023



  9. Linus Tech (Illiteracy) Tips, LTT, Buys Phoronix Media

    Phoronix Media is being acquired by a larger company; the site will not change though



  10. Decided to Quit Debian and Use WSL Instead (Best of Both Worlds)

    Today starts a journey to a “better” experience, which lets Microsoft audit the kernel and leverage telemetry to improve my Debian experience



  11. Microsoft Has Laid Off Lennart Poettering and Hired Elon Musk

    Poettering gets rehired by IBM; IBM and Microsoft announce merger, putting Poettering back into his former position



  12. Links 31/03/2023: Ruby 3.2.2 and Linux Lite 6.4

    Links for the day



  13. Links 31/03/2023: Devices and Games, Mostly Leftovers

    Links for the day



  14. IRC Proceedings: Thursday, March 30, 2023

    IRC logs for Thursday, March 30, 2023



  15. Links 31/03/2023: Ubuntu 23.04 Beta, Donald Trump Indicted, and Finland’s NATO Bid Progresses

    Links for the day



  16. Translating the Lies of António Campinos (EPO)

    António Campinos has read a lousy script full of holes and some of the more notorious EPO talking points; we respond below



  17. [Meme] Too Many Fake European Patents? So Start Fake European Courts for Patents.

    António Campinos, who sent EPO money to Belarus, insists that the EPO is doing well; nothing could be further from the truth and EPO corruption is actively threatening the EU (or its legitimacy)



  18. Thomas Magenheim-Hörmann in RedaktionsNetzwerk Deutschland About Declining Quality and Declining Validity of European Patents (for EPO and Illegal Kangaroo Courts)

    Companies are not celebrating the “production line” culture fostered by EPO management, which is neither qualified for the job nor wants to adhere to the law (it's intentionally inflating a bubble)



  19. Links 30/03/2023: HowTos and Political News

    Links for the day



  20. Links 30/03/2023: LibreOffice 7.5.2 and Linux 6.2.9

    Links for the day



  21. Links 30/03/2023: WordPress 6.2 “Dolphy” and OpenMandriva ROME 23.03

    Links for the day



  22. Sirius is Britain’s Most Respected and Best Established Open Source Business, According to Sirius Itself, So Why Defraud the Staff?

    Following today's part about the crimes of Sirius ‘Open Source’ another video seemed to be well overdue (those installments used to be daily); the video above explains to relevance to Techrights and how workers feel about being cheated by a company that presents itself as “Open Source” even to some of the highest and most prestigious public institutions in the UK



  23. IRC Proceedings: Wednesday, March 29, 2023

    IRC logs for Wednesday, March 29, 2023



  24. [Meme] Waiting for Standard Life to Deal With Pension Fraud

    The crimes of Sirius ‘Open Source’ were concealed with the authoritative name of Standard Life, combined with official papers from Standard Life itself; why does Standard Life drag its heels when questioned about this matter since the start of this year?



  25. Former Staff of Sirius Open Source Responds to Revelations About the Company's Crimes

    Crimes committed by the company that I left months ago are coming to light; today we share some reactions from other former staff (without naming anybody)



  26. Among Users in the World's Largest Population, Microsoft is the 1%

    A sobering look at India shows that Microsoft lost control of the country (Windows slipped to 16% market share while GNU/Linux grew a lot; Bing is minuscule; Edge fell to 1.01% and now approaches “decimal point” territories)



  27. In One City Alone Microsoft Fired Almost 3,000 Workers This Year (We're Still in March)

    You can tell a company isn’t doing well when amid mass layoffs it pays endless money to the media — not to actual workers — in order for this media to go crazy over buzzwords, chaffbots, and other vapourware (as if the company is a market leader and has a future for shareholders to look forward to, even if claims are exaggerated and there’s no business model)



  28. Links 29/03/2023: InfluxDB FDW 2.0.0 and Erosion of Human Rights

    Links for the day



  29. Links 29/03/2023: Parted 3.5.28 and Blender 3.5

    Links for the day



  30. Links 29/03/2023: New Finnix and EasyOS Kirkstone 5.2

    Links for the day


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts