03.21.17

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In the US Patent System, Evolved Tricks for Bypassing Invalidations of Software Patents and Getting Them Granted by the USPTO

Posted in America, Patents at 7:42 pm by Dr. Roy Schestowitz

Summary: A roundup of news about patents in the US and how the patent microcosm attempts to patent software in spite of Alice (high-impact SCOTUS decision from 2014)

THE EPO has been so full of scandals and lies lately that we have, at times, lost sight of news from the US, including improvements at the USPTO. Tonight, for a change, here is something positive.

“As one can expect, patent law firms promote software patents under the guise of “AI”…”This bit of news suggests that Sony wants a patent on wireless charging — not a new concept in its own right, but we certainly remember that Sony ‘innovated’ devices that almost literally explode, owing to their splendid battery. This happened several times over the years and 3 years ago there were still recalls of products (it also happened a decade ago, and not for the first time).

Putting aside patents on hardware, there are silly new patents on software being assigned. “Interfacing to cloud storage” they call it — the cloudwashing of patents as we called it this month and last month (a fairly recent trend of pseudo-’innovation’ using buzzwords). Someone in Twitter sent a “BS software patent alert” about it. Will courts ever uphold such a patent? probably not after Alice (§101).

“Patent examiners should watch out for these silly workaround attempts; just because some software is described as “on a device”, “over the Internet”, “on a phone”, “in the cloud”, or “for AI” doesn’t mean it’s any less abstract.”Speaking of cloudwashing of patents, we have mentioned “AI” as another buzzword commonly used these days to patent old stuff. As one can expect, patent law firms promote software patents under the guise of “AI” and Barker Brettell LLP, which we mentioned here before in relation to the EPO [1, 2], has no qualms about it (here is another new article along those lines). Patent examiners should watch out for these silly workaround attempts; just because some software is described as “on a device”, “over the Internet”, “on a phone”, “in the cloud”, or “for AI” doesn’t mean it’s any less abstract. The same goes for “machine learning”, “IoT”, “DevOps”, “smart”, “wearable” and other trendy terms that mean too little (if anything at all). These are still software patents, just like that Baxter patent application which Judge Corcoran ruled against in T1508/12-3.5.05.

Over at Watchtroll, the strident proponent of software patents (where actual software engineers never write about it), someone from a law firm (Harrity & Harrity) decided to market some tricks for patenting business methods in spite of Alice. Here’s an except:

These examples seem to indicate that the power of §101 to restrict patentability has been whittled down since Alice and that the USPTO would like to reduce the number of §101 rejections for technological claims in light of court decisions post-Alice. Below, we describe each example provided by the USPTO and explain the USPTO guidance for each example to assist practitioners with reducing and overcoming §101 rejections.

As often happens, they try to sort of reverse-engineer the USPTO’s guidelines in order to defy the rules and sneak bogus patents past the examiners. Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option). As long as the victims are kept isolated and unaware of one another (NDAs can accomplish this), they won’t pool together the financial resources required to fight back against the serial aggressor (taking away the ‘weapon’).

“Once granted, any defendant would have to spend a fortune in court to prove invalidity (with burden of proof and fees enough to make a settlement more attractive an option).”§101 has been worrying the patent microcosm and media of this microcosm keeps trying to scrape some good news from the bottom of the barrel. The other day, for example, MIP’s Michael Loney went along with a rather misleading headline, based on some figures from the patent microcosm itself (Fenwick & West). We’ve already mentioned this analysis; Loney could say that CAFC MAINTAINS high §101 invalidity rates, but instead he went along with “US district court 101 invalidity rates down slightly in 2017″ and left much of the rest behind a paywall. “The Federal Circuit,” he noted before the paywall kicked in, “maintains its high invalidity rate on Section 101 decisions so far this year but the district court rate has fallen, according to new figures from Fenwick & West’s Robert Sachs. One interesting recent trend is the PTAB has reversed all 16 ex parte appeals of Section 101 rejections since October…”

PTAB maintains and even increases its workload, though Loney recently compared non-corresponding months to make it look otherwise. They’re using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and ‘tricks’ for fooling examiners, judges, etc.

“They’re using all sorts of tricks in an effort to give their readers, the patent microcosm, some good news and ‘tricks’ for fooling examiners, judges, etc.”Speaking of CAFC, Patently-O wrote about this new verdict, noting that a “California jury held that TVIIM’s U.S. Patent No. 6,889,168 was both invalid as anticipated and not infringed. On appeal, the Federal Circuit affirmed. [...] The result here is that a potentially inconsistent verdict is not improper so long as any possible resolution of the inconsistency reaches the same outcome (here, that the patentee loses). In this case, any proposed construction of the claim terms resulted in either the patent being invalid or being not infringed.”

This is a good example of tricks used in vivo — so to speak — once the patents are already in a process; the same sorts of tricks have been attempted at PTAB, in desperate efforts to save patents by editing their contents (as if patents are something dynamic that should have versions and revisions even after a grant). It’s like evergreening of patents ‘on the go’. The whole thing is laughable and it contradicts the very premise/basis of patenting!

“…it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production.”Incidentally, recently in Techrights we have covered several examples of frauds and charlatans extorting with patents; Some patently unethical frauds out there blackmail small companies by the thousands (of companies) using patents they haven’t got or patents which they know are bogus. Classic protection racket! Many examples were recently given of it and this new article (behind paywall) says that “Patent Owners Face Increased Fraud Liability Risk”. To quote the open access summary/outline: “New legislative and court-driven developments in patent law have increased the risk of securities fraud liability for public company patent owners. Such patent owners and their securities counsel are therefore best advised to understand these developments, their intersection with securities law, and how they may affect some public disclosures.”

As access to the article is restricted, as is normal for that site, it’s hard to say if any of this alludes to frauds and charlatans who claim to have patent leverages that they haven’t (in order to extract fees from a lot of companies), but either way, it seems clear that there is growing backlash against patent maximalism, which has become more like a religion than a science, and is practiced by firms that engage neither in science nor in any form of production.

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