10.29.17

Gemini version available ♊︎

Large US Companies Continue to Stockpile Patents, But US Courts Have Learned to Repel Patent Maximalism

Posted in America, Apple, IBM, Patents at 7:49 pm by Dr. Roy Schestowitz

Patents on software are just about as inane and worthless as patents on musical notes

Papers with musical notes

Summary: In spite of misguided campaigns to accumulate/hoard tens of thousands of patents and then cross-license these, courts do not see the legitimacy of most of these patents

SEVERAL days ago someone pointed out this case of a lawyer who had been fired for being ethical. It’s not too shocking; lawyers aren’t expected to be honest, only to maximise profit. To quote:

The Third Circuit reversed the grant of the dismissal of a lawsuit by in-house counsel who sued because, he alleged, he was forced to choose between complying with an application filing quota or complying with his ethical obligations to the USPTO. The case, Trzaska v. L’Oreal USA, INc., (3rd Cir. July 25, 2017), is here.

“The complaint alleged that complying with the quota meant filing “frivolous” patent applications,” Generare Oy Ltd. told me about this. The situation may seem familiar to some.

What’s with all the stockpiling? Why has this become so normal? Yesterday we saw blind acceptance of patents and endless admiration of Apple/Steve Jobs, leading to this kind of terrible Web site which equates/conflates patents with innovation and celebrates accumulation of patents based on quantity alone (because large companies just cross-license a massive number of patents without even assessing these individually).

“What’s with all the stockpiling? Why has this become so normal?”The above is about Apple, but IBM too plays that game and IBM is far too proud of software patents that are likely invalid (it still uses these to bully rivals). See this press release [1, 2, 3] which said “IBM leadership in storage systems and software is based upon more than 380 system patents, including IBM FlashCore technology and more than 700 patents for IBM Spectrum Storage software.”

Around the same time (as this press release) we saw IBM’s patents chief gloating that “Snap-On gets hammered” by patents, having just been judged by a jury that probably does not understand what patents are. The report in question says this:

The Journal Sentinel reports Snap-on’s Rick Secor says the company strongly disagrees with the jury’s verdict and will “vigorously appeal.”

In the lawsuit, the Brookfield-based Milwaukee Tool says the lithium-ion battery packs it invented revolutionized the industry after the technology was introduced in 2005. It replaced packs that used nickel-cadmium batteries.

This particular case is not about software patents, but it’s interesting that IBM is keen to promote it. The patents chief has also just linked to a patent troll’s site (Dominion Harbor) in support of software patents. “The sad, confused state of US #patent eligible subject matter described here,” he said in relation to a patent troll known as Secured Mail Solutions (SMS) — a troll we just mentioned here the other day. To quote:

Because I believe that everyone, as a means of self-improvement, should occasionally test their patience and evaluate their ability to manage pain, I was reading the Federal Circuit’s recent decision in Secured Mail Solutions, LLC v. Universal Wilde Inc., upholding the district court’s ruling on the pleadings that Secured Mail’s seven asserted patents were all ineligible under 35 USC § 101. These patents all address tracking mail through an encoded marking, e.g., a barcode, QR code or URL, on the outside of a mailer which is intended to provide information to the recipient about the contents and the sender. Setting aside that when you see a panel of Prost, Clevenger and Reyna you know the patent’s dead, it’s just a matter of how they will craft the language to that desired effect, let’s just look at how the famed Alice test was handled in this case in general.

It’s safe to say that almost every such case now yields invalidity. Courts understand, in light of Alice, that it’s a matter of great certainty. Software patents are out.

“Software patents are out.”If the rumours are true, the USPTO‘s patent examiners too will soon follow suit. Maybe the EPO‘s also?

The EPO mentioned PCT applications a few days ago and so did Patently-O (compare China to Korea in this graph). PCT is the Patent Cooperation Treaty and if one nation abandons software patents, we can expect others to follow the lead.

Moreover, as Patently-O pointed out a few days ago, better examiners will result in fewer incorrect patent grants. The research explores the “[r]elationship between examiner specialization and examination outcomes.”

“So it shows empirically that “specialization is associated with a more stringent examination process,” as one might expect. Lack of knowledge (or ignorance) in the problem domain leads to more patents.”The summary says, “we find a significant degree of technological specialization among patent examiners working in the same art-unit. This specialization is less pronounced in some of the computer-related technology centers. We found no evidence that examiners specialize in handling important or controversial applications. And it seems that specialization is associated with a more stringent examination process, perhaps because it allows examiners to more easily identify relevant prior art.”

So it shows empirically that “specialization is associated with a more stringent examination process,” as one might expect. Lack of knowledge (or ignorance) in the problem domain leads to more patents. Here we see the importance of the recruitment process, or the ability to attract top talent. It’s hard to mislead examiners who assess patents in their own field of expertise. Consider for instance this new example that says: “The court found the defendant’s argument “not unreasonable,” but nonetheless rejected it. The “great weight of the case law” made clear that the duty to “disclose all material information to the patent examiner” did not extend to ensuring that “the patent examiner understands that information.””

Sadly, if the examiners don’t understand, they often just grant patents. It should be the exact opposite. If the applicant cannot properly explain to the examiners what is being claimed, then the examiner should assume it’s likely intentional. “If you can’t explain it simply, you don’t understand it well enough,” Albert Einstein famously said. He too was a patent clerk (before becoming famous).

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 21/05/2022: GitLab at Fedora and Pipewire in Next Ubuntu

    Links for the day



  2. Links 21/05/2022: HP Teams up with System76

    Links for the day



  3. IRC Proceedings: Friday, May 20, 2022

    IRC logs for Friday, May 20, 2022



  4. Links 20/05/2022: Thunderbird Revenue Rising

    Links for the day



  5. Outsourcing Sites to Social Control Media is an Outdated Mindset in 2022

    Centralised or federated censorship/filtering platforms (also known as "social [control] media" [sic]) aren't the way forward; we're therefore a little surprised that Linux Weekly News (LWN) bothers with that languishing bandwagon all of a sudden



  6. Links 20/05/2022: Plasma's Latest Beta in Kubuntu 22.04, Kapow 1.6.0 Released

    Links for the day



  7. Turkey's Migration to Pardus Linux and LibreOffice Explained 2 Months Ago in LibrePlanet

    This talk by Hüseyin GÜÇ was uploaded under the title “Real world GNU/Linux story from Istanbul”



  8. In Turkey, Windows Market Share is Down to Almost Nothing, 'Linux' is About Two Thirds of the Connected Devices

    Watch this graph of Windows going down from around 99.5% to just 11.55% this month



  9. The Lies and Delusions of António Campinos

    Monopolies and American corporations (and their lawyers) are a priority for today's EPO, Europe's second-largest institution



  10. Links 20/05/2022: Fedora BIOS Boot SIG

    Links for the day



  11. Links 20/05/2022: Oracle Linux 8.6 and VMware Security Crisis

    Links for the day



  12. IRC Proceedings: Thursday, May 19, 2022

    IRC logs for Thursday, May 19, 2022



  13. Links 19/05/2022: Rust 1.61.0 and Lots of Security FUD

    Links for the day



  14. EPO Eating Its Own (and Robbing Its Own)

    António Campinos is lying to his staff and losing his temper when challenged about it; Like Benoît Battistelli, who ‘fixed’ this job for his banker buddy (despite a clear lack of qualifications and relevant experience), he’s just robbing the EPO’s staff (even pensioners!) and scrubbing the EPC for ill-gotten money, which is in turn illegally funneled into financialization schemes



  15. [Meme] EPO Budget Tanking?

    While the EPO‘s António Campinos incites people (and politicians) to break the law he’s also attacking, robbing, and lying to his own staff; thankfully, his staff isn’t gullible enough and some MEPs are sympathetic; soon to follow is a video and publication about the EPO’s systematic plunder (ETA midnight GMT)



  16. EPO.org (Official EPO Site) Continues to Promote Illegal Agenda and Exploit Ukraine for PR Stunts That Help Unaccountable Crooks

    epo.org has been turned into a non-stop propaganda machine of Benoît Battistelli and António Campinos because the EPO routinely breaks the law; it’s rather tasteless that while Ukrainians are dying the EPO’s mob exploits Ukraine for PR purposes



  17. [Meme] EPO Applicants Unwittingly Fund the War on Ukraine

    As we’ve just shown, António Campinos is desperately trying to hide a massive EPO scandal



  18. EPO Virtue-Signalling on the Ukrainian Front

    António Campinos persists in attention-shifting dross and photo ops; none of that can change the verifiable facts about the EPO’s connections to Lukashenko’s 'science park' in Minsk



  19. Links 19/05/2022: PostgreSQL 15 Beta 1 and Plasma 5.25 Beta

    Links for the day



  20. A Libera.Chat Anniversary and Happy Birthday (Maybe the Last) to 'Leenode'

    What became known as the so-called ‘Leenode’ is a cautionary tale, but maybe it is also a blessing in disguise because IRC as a whole seem to have become a lot more decentralised (as everything should be)



  21. Links 19/05/2022: The Gradual Fall of Netflix/DRM

    Links for the day



  22. IRC Proceedings: Wednesday, May 18, 2022

    IRC logs for Wednesday, May 18, 2022



  23. Links 18/05/2022: Qt Company Loses Chief; OpenSUSE Leap Micro 5.2 and RHEL 9 Final

    Links for the day



  24. Jim Zemlin's Wife is Funded by Puppies (Microsoft)

    Jim Zemlin — like his wife — is bagging millions from Microsoft, but that’s clearly a conflict of interest for the Linux Foundation



  25. Links 18/05/2022: More Defections From WordPress to Gemini

    Links for the day



  26. Links 18/05/2022: PikaScript and cURL's Annual User Survey

    Links for the day



  27. IRC Proceedings: Tuesday, May 17, 2022

    IRC logs for Tuesday, May 17, 2022



  28. Phoronix: Microsoft and Phoronix Sponsor (and Close Microsoft Partner) AMD All Over the Place

    When you’re taking massive 'gifts' from AMD (and also some from Microsoft) maybe it’s not surprising that editorial decisions change somewhat…



  29. EPO Has No F-ing Oversight

    Earlier today SUEPO mentioned this new article demonstrating that EPO President António Campinos can very obviously and blatantly violate the Code of Conduct of the Office without facing any consequences; there are translations too, so the report is now available in four languages



  30. [Meme] Linux-Rejecting Foundation

    The Linux Foundation never really leads by example; by default, it uses proprietary software


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