IRC Proceedings: July 2nd, 2017 – July 8th, 2017
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IRC Proceedings: July 9th, 2017 – July 15th, 2017
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IRC Proceedings: July 16th, 2017 – July 22nd, 2017
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IRC Proceedings: July 23rd, 2017 – July 29th, 2017
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IRC Proceedings: June 4th, 2017 – June 10th, 2017
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IRC Proceedings: June 11th, 2017 – June 17th, 2017
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IRC Proceedings: June 18th, 2017 – June 24th, 2017
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IRC Proceedings: June 25th, 2017 – July 1st, 2017
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IRC Proceedings: May 7th, 2017 – May 13th, 2017
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IRC Proceedings: May 14th, 2017 – May 20th, 2017
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IRC Proceedings: May 21st, 2017 – May 27th, 2017
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IRC Proceedings: May 28th, 2017 – June 3rd, 2017
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IRC Proceedings: April 9th, 2017 – April 15th, 2017
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IRC Proceedings: April 16th, 2017 – April 22nd, 2017
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IRC Proceedings: April 23rd, 2017 – April 29th, 2017
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IRC Proceedings: April 30th, 2017 – May 6th, 2017
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…not that courts tolerate these patents (if one can afford fighting them in court)
Summary: Patents that are toothless, clawless lions are being accumulated by companies that should know various courts would scrutinise these enough to rule them invalid
THE number of software patents at the USPTO is hundreds of thousands. And these are the ones that aren’t expired yet. It’s a bubble. It’s madness. No way any software developer (or even software firm) can keep track of this many patents, which is one of many reasons such patents aren’t desirable.
Suffice to say, software patents are being ‘dressed up’ as something they’re not. As this news article from South Africa put it four days ago, it’s widely known that the “existence of patents may actually stifle innovation in key sectors, for example in software…”
This article is about patents on life-saving medicine — an area in which prominent US lobbyists (including the Podesta Group) bully South Africans, on behalf of large US corporations, obviously. From the article:
In the case of medicines, the mere existence of patent protection may lead to the high price of lives being lost, as in our recent history, when millions of South Africans could not afford antiretroviral treatment for HIV, and as in the present day, when few can afford the impossible burden of new, life-saving treatments for cancer.
The other day we also saw this article about Singapore, noting correctly that they may need to limit “patent regime to spur innovation and improve the quality of patents granted…”
“What sort of loopholes exist? We already named words like “device”, “car”, “phone” and phrases like “over the Internet” or buzzwords such as “cloud”, “AI” etc.”Because patent quality matters. Not the number of patents. It should be about quality, not quantity. Singapore should stop issuing/granting software patents and patents on business methods, not just on genome (or anything about DNA). To quote: “One of the package’s most important steps is to follow decisions in the landmark cases of Association for Molecular Pathology v Myriad Genetics, from the US, and Australia’s D’Arcy v Myriad Genetics by clarifying that Singapore believes isolating DNA” is not patenable.
Only the crazy EPO has decided to become the world's laughing stock by granting patents on genome. As we said earlier today, the EPO also gave a green light/loophole to software patenting — something which examiners we heard from vehemently object to but are pressured (from above) to accept.
What sort of loopholes exist? We already named words like “device”, “car”, “phone” and phrases like “over the Internet” or buzzwords such as “cloud”, “AI” etc.
These are the new tricks.
Buzzword overload and media hype, accompanied by marketing from large companies, brought back an old buzzword from the dead. Now it’s “AI” everywhere; for whose benefit? It’s not a new concept and it’s a broad area which pertains to statistics and maths (at the lower level). I did my doctorate on it.
“It’s a shame the above companies/people don’t know that software patents are a waste of time and mere paper, mostly because these are worthless in courts.”It’s disturbing to see just how often these days patents get painted as “AI” to hide the fact that they’re on software and maths. Here is a new example [1, 2] (only days old) which speaks of an “AI techniques to identify individual attacker behavior and to judge the severity of combinations of such behaviors.”
There’s an illusion of novelty and illusion of it not being abstract, but courts in the US repeatedly reject such patents (the USTPO continues to grant them, under the assumption a buzzword like “AI” can bypass tests). It’s all just software. How about this other example from last week’s news? Malicious patents that are not only on software but also for surveillance? Surely Alice makes these patent-ineligible. Here’s another new one, which speaks of “pioneer[ing] in patented physical, cyber and biometric technologies…”
“Will examiners learn to stop all these tricks and loopholes? They’re being ambushed and bamboozled by law firms whose main skill (or so-called ‘service’) is confusing examiners into granting what they should not.”Well, biometrics are software. There’s a device for scanning, sure, but much of the work is done by maths. Is “biometric” another one of those buzzwords that are now being used to disguise software patents? It’s a shame the above companies/people don’t know that software patents are a waste of time and mere paper, mostly because these are worthless in courts. Maybe some dishonest lawyers talked them into it. Here is another example, this one saying that “BOS GLOBAL Holdings PLC managing director hailed as a “remarkable achievement” the granting of two Australian patents protecting its workplace productivity software.”
Well, as we noted here earlier this month (citing an Australian law firm), the Australian courts don’t tolerate software patents, so this too is a waste of time and money.
Will examiners learn to stop all these tricks and loopholes? They’re being ambushed and bamboozled by law firms whose main skill (or so-called ‘service’) is confusing examiners into granting what they should not. █
The real battleground: Litigation and Patenting (L&P) versus Research and Development (R&D)
Summary: A reminder of who’s ‘stealing’ jobs from engineers and who it is done for (who benefits from mass taxation rather than actual production)
TODAY’S MANY POSTS about the USPTO are intended not only to cover recent developments but also to demonstrate just how out-of-hand things have become due to patent maximalism. Decades ago it was nothing like that.
Consider this new press release, which is a symptom of where we are today. Instead of hiring scientists, who are well-educated, experienced and high-skilled, firms are adding “patent” people [1, 2] and press releases like this new one (“Innovate Intellectual Property Research” in the headline) remind us of that infamous saying from the world’s largest patent troll (Nathan Myhrvold, Microsoft's patent troll), who said: “Intellectual property is the next software.”
“Society cannot advance if litigation and patenting replace research and development (R&D).”What ever happened to focus on creation and development? Patents are paperwork and legal work, they’re not science and technology. A few days ago Cambridge Network said: “Our exhibitors this year included the UK IPO; RWS Group Inovia providing patent filing and translation services, and four companies who provide search and analysis software for patent and IP related research” (as if it’s all about patents now).
Society cannot advance if litigation and patenting replace research and development (R&D). We need to choose what’s more important. Decades ago, recalls this new article, IBM bullied its competition using patents (it still does) and this was the impact:
For perspective on the impact that patents can have in the tech industry, we turn to a tale from the 1980s during the PC boom when the relationship between hardware and software was markedly different from today. The legal battles between IBM and Compaq over “clone” computers were formative for attitudes about IP today.
Computers could advance a lot faster if it wasn’t for software patents and constant patent bullying from the likes of IBM (a resurgent trend now that IBM is imploding with a lot of layoffs). It’s time to decide whether we want a world full of programmers or full of legal firms (employing a few programmers to develop patent-searching tools). We shall say more in our next post about software patents. █
Summary: Patent appeals that come to CAFC as a result of bad Patent Office decisions now outnumber the appeals coming from district courts (an extraordinary situation)
THE Court of Appeals for the Federal Circuit (CAFC) is the court which deals with many patent lawsuits and is one level below the Supreme Court. It’s the court which brought software patents to the US, but it’s also the court which now (after Alice at Supreme Court level) invalidates many of these, more so than district (lower) courts do, pro rata.
CAFC is essential to our understanding of US patent law. Litigation is down sharply in the US, at least when it comes to patent litigation, and trolls too are a dying (albeit not dead) breed.
In our efforts to keep abreast of CAFC, this past week we learned about its decision on patents pertaining to chemicals [1, 2] and found this article from James P. Cleary and Paul Brockland of Mintz Levin Cohn Ferris Glovsky and Popeo PC. This new reports confirms to us that the USPTO process is being further restricted/limited by courts:
Though the Federal Circuit’s decision extended waiver to post-merger communications in this case, waiver may not apply in many post-merger discussions. For instance, the Federal Circuit emphasized limiting the scope of waiver based on subject matter and fairness. Accordingly, although attorney submissions during patent prosecution may result in waiver, such waiver is less likely to extend to subsequent patent owners or later discussions with trial counsel. However, waiver may extend if a court finds the application and patent prosecution disclosures were made with an eye toward litigation.
Put in simple terms, submissions to the US patent office regarding legal waivers would be fewer. This might be applicable if, for example, a company like Red Hat gets sold with its patents.
In another new post, this one about Prism (mentioned here a few days ago), it says that the “Federal Circuit has denied Prism Tech‘s petition for en banc rehearing on the question of deference to district court factual-findings that underlay a decision on patent eligibility.”
Jason Rantanen, a Professor at the University of Iowa College of Law, took stock of CAFC decisions and said: “Given the increase in appeals from the PTO over the past few years, this graph is not all that surprising–but it’s still quite dramatic. As of mid-2017, the number of decisions in appeals arising from the PTO has exceeded the number of decisions from the district courts for the first time in the history of the Federal Circuit to my knowledge.”
Yes, and hence the importance of the CAFC’s pattern of decisions. As CAFC is a lot more likely to invalidate software patents (than district courts), this is good news too.
As patents and misconduct go hand in hand sometimes (we covered some examples of that), worth noting is the following report also:
Inequitable conduct in failing to disclose a reference is a defence to patent infringement that requires a showing of the materiality of a withheld reference and specific intent to deceive the US Patent and Trademark Office (USPTO) by withholding the reference during prosecution of the patent application. If proven, inequitable conduct renders the entire patent unenforceable.
In Regeneron Pharmaceuticals, Inc v Merus NV the Federal Circuit surprisingly affirmed that specific intent to deceive the USPTO can be inferred as a result of misconduct during a patent infringement lawsuit, even if such misconduct occurs several years after prosecution of the patent.
The basis for dismissing patent lawsuits seems to have become broader. CAFC in particular seems intolerant of anything that deems patents questionable.
There are exceptions, however, and one of these was covered a few days ago in relation to “programmable operational characteristic” in hardware. In this case, CAFC actually overturned a district court’s judgment in favour of patents, so Patently-O was quick to (cherry-) pick it:
In a split opinion, the Federal Circuit has sided with the patentee and reversed a the [sic] district court judgment that Visual Memory’s patent claims improperly encompass an abstract idea. The opinion filed by Judge Stoll was joined by Judge O’Malley. Judge Hughes wrote in dissent.
Claim 1 of asserted U.S. Patent No. 5,953,740 is directed to a “computer memory system” that includes a “main memory” and also a “cache” both connected to a bus that can then be connected to a processor. The inventive element, is that the cache’s operation is programmable – allowing it to work efficiently with different processors. The claim particularly requires “a programmable operational characteristic of said system determines a type of data stored by said cache.” In the words of the court, “the memory system is configured by a computer to store a type of data in the cache memory based on the type of processor connected to the memory system.”
We remind readers that CAFC was historically very problematic when it comes to patent because it facilitated an explosion in the number of patents. However, the Supreme Court overturned CAFC almost every time in recent years. We hope that CAFC is learning its lessons and correcting its ways to avoid any further embarrassments, namely the Justices calling CAFC out.
It’s time to help the patent bubble implode. It does nobody (except the patent ‘industry’) any favours. █
There are even patents on rounded corners!
Summary: The epidemic of shallow patents, which has already resulted in patents on mere designs, be soon end; but not before an unprecedented gold rush for such patents
EARLIER this year and last year we wrote many articles about the bizarre concept of a design patent; one ought to expect copyrights — not patents — to cover designs. In Europe there’s something in-between.
Did design “innovation” grow sixfold in 20 years? No. Well, but the number of design patents grew sixfold in just a couple of decades, based on the latest figures. It’s a patent bubble or a gold rush at the USPTO. What’s more, as we wrote earlier this month, the Supreme Court might soon serve a blow that can invalidate them all.
“How long before sculpting becomes some sort of a crime? Or 3-D printing?”There are comments above like: “What is the technical degree necessary for the ornamental arts?”
How long before sculpting becomes some sort of a crime? Or 3-D printing? Might it be any worse than software patents, where the mere act of coding (one’s own original program) can become an invitation to lawsuits? Where does this end? How about patents “On Tacos” (or taco plates) as Patently-O put it the other day? To quote: “Design patents aren’t supposed to protect “functional” aspects of a design. But in design patent law, as explained by Prof. Sarah Burstein (@design_law on Twitter), “functional” means “the only configuration that is fit for a particular purpose.” If there’s another way of doing it, then it isn’t functional. And there are plenty of alternative configurations for plates that hold tacos upright.”
Ridiculous!
“When will we see patents on paintings?”More design patents were mentioned in the media a couple of days ago, so certainly it’s becoming a ‘thing’.
When will we see patents on paintings? Not yet? █
Dr. Roy Schestowitz
Guest Editorial Team
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