04.02.17

Software Patents Under Unprecedented Invalidations Pace, Patent Maximalists Scramble to Reverse This Trend or Perception Thereof

Posted in America, Patents at 7:49 am by Dr. Roy Schestowitz

Related: The Patent Trial and Appeal Board Breaks Its All-Time Records, Revealing Continued Improvement of Patent Quality

Reference: False coverage rate (the patent microcosm uses a statistically-misleading subset of cases or compares non-overlapping months to belittle the progress made and the low likelihood of software patents withstanding/surviving scrutiny)

Summary: Misleading narratives, plaintiff-friendly courts, efforts to oust USPTO leadership etc. have all been attempted in the face of system-wide amelioration of an otherwise abusers-friendly system; we present some examples of selective new coverage from the patent microcosm

SOFTWARE patents are the biggest problem for GNU/Linux right now. A lot of people don’t know it because patents don’t have any physical presence and they are typically silent in the background, e.g. back room deals and settlements. Trolls like to work in the dark, keeping their victims isolated and helpless.

“Should listen to this Episode BEFORE signing @TheLOTNET Targeted by patent trolls,” says this new tweet about a new podcast from IP Wire — an episode that touches OIN and Microsoft. We recently wrote about software patents aspects of OIN and inability to do anything about Microsoft’s trolls who are the company’s latest patent strategy against GNU/Linux [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. Sadly, though many Free software proponents prefer to overlook the problem, patent blackmail persists and it harms the ability to freely distribute Free software such as GNU/Linux.

“Sadly, though many Free software proponents prefer to overlook the problem, patent blackmail persists and it harms the ability to freely distribute Free software such as GNU/Linux.”Thankfully, the US has been cracking down on software patents — a development we are profoundly thankful for. The Court of Appeals for the Federal Circuit (CAFC), together with PTAB, is smashing a lot of software patents to pieces. Patent maximalists like Crouch are trying to use CAFC to slow PTAB down, but they have not been successful. They also try to cause a stir for the removal of the Director of the USPTO, who has been partly responsible for various key reforms.

Not too long ago in Smartflash, LLC v Apple Inc. yet another software patent got invalidated/struck down by CAFC, as these lawyers have only just noticed:

More Patent Invalidated as Abstract Ideas

[..].

The case is Smartflash, LLC v. Apple Inc., decided by the Federal Circuit Court of Appeals on March 1, 2017. Smartflash owned three patents for technology that limited Internet access to data (video, audio, text, and software) to users who had paid for access. In 2013, Smartflash sued Apple in a Texas district court for infringement of the three patents. In 2015, the jury returned a verdict of infringement against Apple, finding Apple liable to Smartflash for $533 million in damages.

Suffice to say, law firms are not particularly happy about it. Some of them try to figure out ways around CAFC and writing to other law firms (behind paywall) they say: “Several recent decisions by the U.S. Court of Appeals for the Federal Circuit have untangled crucial uncertainties plaguing software patent applicants following the outcome of Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014).” (the headline is somewhat misleading and gives unnecessary optimism with, “Federal Circuit Cases Clarify What Makes a Valid Software Patent”).

“Sites like these tend the cherry-pick the minority (20% or so) of cases where CAFC and PTAB are not in agreement.”In other news about PTAB/CAFC team-ups against software patents, here is the National Law Review saying that a “determination by the PTAB [...] asserted claims were directed to patent-ineligible subject matter under § 101…”

Sites like these tend the cherry-pick the minority (20% or so) of cases where CAFC and PTAB are not in agreement. Here is the ‘beef’ of the article:

After the US Court of Appeals for the Federal Circuit addressed the very same issue and patent, the Patent Trial and Appeal Board (PTAB) reached a split decision, finding the claims to be patent eligible under § 101 despite new characterizations of the abstract idea and new arguments from the patent owner. IBG LLC v. Trading Techs. Int’l., Inc., Case No. CBM2015-00182 (PTAB, Feb. 28, 2017) (Plenzler, APJ) (Petravick, APJ, dissenting in part).

The patent at issue is directed to a user interface for an electronic trading system that allows a remote trader to view trends for an item. The patent owner asserted this patent against several defendants, who in turn sought covered business method (CBM) patent reviews in America Invents Act proceedings at the PTAB. One of the earlier cases resulted in a determination by the PTAB that the asserted claims were directed to patent-ineligible subject matter under § 101. On appeal of that earlier case, the Federal Circuit reversed and issued a non-precedential decision finding the claims patent eligible. In view of the Federal Circuit’s decision, the PTAB in the instant case allowed further briefing on the impact the Federal Circuit’s decision.

Another CAFC case was covered in lawyers’ media a short while ago. In it, patent law firms latched onto the edge cases (as usual) where patents were tolerated by CAFC, unlike PTAB. They try to accentuate the supposed ‘rift’ between the two, even though both PTAB and CAFC eliminate software patents most of the time and are also in agreement with one another (also on the issue of business method patents). To quote some portions from the microcosm:

Addressing issues of obviousness and anticipation in the context of an inter partes review, the US Court of Appeals for the Federal Circuit issued two decisions with respect to the same patent, vacating and remanding the Patent Trial and Appeal Board’s (PTAB’s) decision finding the claims invalid as obvious in the first case, and affirming the PTAB’s finding that the claims were not anticipated in the second case. Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center v. Eli Lilly and Co., Case No. 16-1518 (Fed. Cir., Feb. 28, 2017) (Bryson, J) (Newman, J, concurring in part, dissenting from the judgment); Eli Lilly and Co. v. Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center, Case No. 16-1547 (Fed. Cir., Feb. 28, 2017) (Bryson, J).

[...]

The Federal Circuit agreed with LAB’s contention that the PTAB’s findings were insufficient to establish obviousness under the correct claim construction. Specifically, the Court found that, while the PTAB concluded that the prior art references rendered obvious the treatment of erectile dysfunction via the claimed method, it did not make factual findings to determine whether those references showed it would have been obvious to use long-term continuous treatment with a PDE5 inhibitor to treat individuals with penile fibrosis and to achieve the arrest or regression of that condition. The Court noted that the correct construction of the pertinent claim language required more than simply treating erectile dysfunction. The Court also noted that the PTAB failed to consider the possibility that, even if the combination of prior art references taught long-term treatment with a PDE inhibitor of individuals with some forms of erectile dysfunction, a person of skill in the art may not have been motivated to combine those same references to treat individuals with fibrosis-related erectile dysfunction, for whom, LAB argued, the results would have been expected to be detrimental.

Why is there virtually no coverage of the 80% or so cases where CAFC looks into PTAB decisions (upon appeal) and agrees with PTAB? Well, that would simply not serve the “perception management” agenda of patent law firms and maximalists. They’re not being honest; they don’t tell the full story. That’s greed. █

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