04.02.17

Gemini version available ♊︎

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

False coverage rate
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.

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. Links 27/10/2021: XOrg Server 21.1 and Makulu Shift Ubuntu Variant Released

    Links for the day



  2. Links 27/10/2021: Murena for /e/ and Red Hat Condemned for Its Nationalism/Racism

    Links for the day



  3. [Meme] EPO Presidential Surveys

    The 'social democracy' of Benoît Battistelli and António Campinos as demonstrated by a controlled survey (controlled by the subject of the survey, EPO governance)



  4. 'Shaping the New Normal' Survey at the EPO Got 5,554 EPO Staff to Participate, But It Was Controlled by Liars With an Agenda

    Last year’s EPO ‘study’ (hogwash about “quality” and other unscientific junk) was likely biased by virtue of autocrats controlling it and exploiting it for nefarious agenda and brainwashing of national delegates. The Staff Union of the EPO (SUEPO) has a new survey in the making.



  5. Many of the National Delegations (or Delegates) in the EPO's Administrative Council Have No Understanding of What They Vote on

    One must consider the possibility that ignorance or gullibility (which lack of qualifications may entail) possibly became a contributing factor — malice and bribery aside — in systemic failure of the EPO’s governance



  6. The EPO’s Overseer/Overseen Collusion — Part XXV: The Balkan League - Fresh Blood or Same Old, Same Old?

    We take stock of "captured states" that voted in favour of unlawful "Strike Regulations"



  7. IRC Proceedings: Tuesday, October 26, 2021

    IRC logs for Tuesday, October 26, 2021



  8. Beatriz Busaniche Speaks Up in Defense of Richard Stallman

    Beatriz Busaniche sent us this comment in July 2021. She wrote it originally in Spanish. Here are both the original text and our translation to English.



  9. Links 26/10/2021: SUSE Linux Enterprise Micro 5.1 and Multi-Distro Benchmarks

    Links for the day



  10. Links 26/10/2021: Vulkan 1.1 Conformance for Raspberry Pi 4 and Tor Browser 10.5.10

    Links for the day



  11. [Meme] Sounds Legit

    When not cheating on the wife, the EPO‘s “doyen” cheats in the exams and makes it into the epi Council, in effect working “[t]owards a common understanding [sic] of quality” with “patent attorneys nominated as “assessors” by the EPO, epi and BusinessEurope” (notorious lobbyists for dictators, litigation, and monopolies, neither business nor science)



  12. [Meme] Mayoral Patent Office Chief

    As it turns out, political 'double-dipping' isn't just a thing in North Macedonia, Austria, and EPOnia



  13. Romania's Patent Office (OSIM): Nine Different Chiefs in Just Eight Years

    The Romanian State Office for Inventions and Trademarks (OSIM), being the equivalent of the U.S. Patent and Trademark Office (USPTO) in the sense that it covers both patents and trademarks, is a very flaky institution with no shortage of scandals; for our English-reading audiences we now have a summary of a decade’s worth of blunders and leadership changes



  14. The EPO’s Overseer/Overseen Collusion — Part XXIV: The Balkan League - Romania

    Romania’s patent office has been in flux this past decade, occasionally led by people with no relevant experience, but rather political connections (like EPO President António Campinos) and sometimes forged documents and fake degrees



  15. IRC Proceedings: Monday, October 25, 2021

    IRC logs for Monday, October 25, 2021



  16. [Meme] “Social Democracy” at the EPO

    Some comments on the current situation at the European Patent Office from Goran Gerasimovski, the new EPO Administrative Council delegate for North Macedonia and Social Democratic candidate for mayor of Centar (a municipality of Skopje)



  17. [Meme] António Campinos Visits the OSIM

    António Campinos visits OSIM Director-General Ionel Muscalu in February 2014



  18. [Meme] [Teaser] Meet the President

    Later today we shall see what Romania did for Battistelli



  19. Links 26/10/2021: Latte Dock 0.10.3 and Linux 5.15 RC7

    Links for the day



  20. Gemini Protocol's Originator: “I Continue to Care About This Project and I Care About the Community That Has Formed Around It.”

    'Solderpunk' is back from a long hiatus; this bodes well for Geminispace, which grew fast in spite of the conspicuous absence



  21. Bulgarian Like Bavarian Serfdom

    Bulgarian politics seem to have played a big role in selecting chiefs and delegates who backed Benoît Battistelli‘s unlawful proposals, which treat workers almost like slaves and ordinary citizens as disposable ‘collaterals’



  22. The EPO’s Overseer/Overseen Collusion — Part XXIII: The Balkan League - Bulgaria

    Today we examine the role of Bulgaria in Benoît Battistelli‘s liberticidal regime at the EPO (as well as under António Campinos, from 2018 to present) with particular focus on political machinations



  23. Links 25/10/2021: New Slackware64-current and a Look at Ubuntu Budgie

    Links for the day



  24. Links 25/10/2021: pg_statement_rollback 1.3 and Lots of Patent Catchup

    Links for the day



  25. Microsoft GitHub Exposé — Part III — A Story of Plagiarism and Likely Securities Fraud

    Today we tread slowly and take another step ahead, revealing the nature of only some among many problems that GitHub and Microsoft are hiding from the general public (to the point of spiking media reports)



  26. [Meme] [Teaser] Oligarchs-Controlled Patent Offices With Media Connections That Cover Up Corruption

    As we shall see later today, the ‘underworld’ in Bulgaria played a role or pulled the strings of politically-appointed administrators who guarded Benoît Battistelli‘s liberticidal regime at the EPO



  27. IRC Proceedings: Sunday, October 24, 2021

    IRC logs for Sunday, October 24, 2021



  28. Links 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day



  29. The Demolition of the EPO Was Made Possible With Assistance From Countries That Barely Have European Patents

    The legal basis of today's EPO has been crushed; a lot of this was made possible by countries with barely any stakes in the outcome



  30. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League - North Macedonia and Albania

    We continue to look at Benoît Battistelli‘s enablers at the EPO


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