02.11.18
Posted in America, Courtroom at 6:40 pm by Dr. Roy Schestowitz
Because that might damage faith in software patents
Summary: With § 101 still being entertained by courts and by PTAB, software patents continue to be invalidated, but these cases receive nowhere near the level of attention Berkheimer v HP received (because patent lawyers prefer to focus only on what suits their agenda)
THE existence of software patents at the USPTO gradually becomes more of a legacy. Sure, new ones continue to be granted, but few are asserted in a court of law. Some of them are regarded/considered to be next to worthless.
“The existence of software patents at the USPTO gradually becomes more of a legacy.”Our previous article, regarding Berkheimer v HP, explained that it’s not really about § 101, contrary to what the patent microcosm would like us to think. Michael Borella said some days ago that this decision “may result in the USPTO having to update its § 101 guidance for examiners and the PTAB.”
May.
Maybe.
Like we said in the last article, this isn’t the Supreme Court. Here is what patent maximalists want to believe:
But the impact of today’s decision may be further-reaching than the other three. At the very least, it provides a degree of clarity as to the evidentiary standard applicable to a § 101 challenge on summary judgment. This may result in the USPTO having to update its § 101 guidance for examiners and the PTAB.
No, the same can be said for other sections. All that the court said was, sufficient evidence needs to be provided. That’s all.
“…Even the US government strives to eliminate what it perceives to be software patents…”In another long article (published at 11:20 PM by Joseph Herndon) the same site said that the “U.S. Government Fails in Attempt to Invalidate U.S. Patents under § 101″ (sounds promising for them, at least on the surface).
Even the US government strives to eliminate what it perceives to be software patents and here are the actual details:
In a bit of an ironic outcome, the U.S. government was unsuccessful in invalidating U.S. patents under § 101. It seems odd that the government issued the patents on the one hand, and later, tried to invalidate them.
Plaintiff, Science Applications International Corp. (“SAIC”), claimed that the U.S. government infringed four patents by entering into contracts with plaintiff’s competitors for the procurement of specialized heads up displays (“HUD”) and night vision goggles that allegedly use SAIC’s patented technology. Defendant, the United States, moved to dismiss for failure to state a claim under Rule 12(b)(6), contending that Plaintiff’s patents claim ineligible subject matter under 35 U.S.C. § 101.
The patents at issue here are U.S. Patent Nos. 7,787,012; 8,817,103; 9,229,230; and 9,618,752. The four patents form two patent families due to the interrelatedness of the applications.
These aren’t software patents. They involve actual hardware. So ascribing this to a § 101 failure is misleading at best; this was a poor defense strategy/argument. We see lots of those.
“…the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC § 101/Alice)”Remember that just because a defendant invokes § 101 does not guarantee success. Sometimes § 101 just isn’t relevant at all.
In other news (from another site), the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC § 101/Alice). Not so exciting for patent maximalists, so of course they mostly ignored it. It’s a § 101 affirmation:
If you want an example of the kind of patent-eligibility question that is now easy to resolve under the Alice abstract idea test, look to the Federal Circuit’s non-precedential decision in Move, Inc. v. Real Estate Alliance, No. 2017-1463 (Fed. Cir. Feb. 1, 2018) (opinion by Judge Stoll, joined by Judges Lourie and Wallach). In this case, the court affirmed a lower court’s summary judgment of invalidity under 35 USC § 101 of claims of two patents directed to computerized methods for locating available real estate, i.e., property for purchase.
[...]
The Court strictly followed the Alice/Mayo test for section 101, and noted that this test is not concerned with whether an artisan skilled in the art can perform the method claimed by the patent nor whether the claim language is sufficiently definite, novel, or non-obvious, but rather whether the character of a claim as a whole is directed to a patent-ineligible subject matter. Taken on the face of the claims and the specification, the Court found that SAIC’s patents combine existing computer technology, sensors, and calculations in an unconventional way in order to reach a solution to the problem of alignment and consistently accurate display. Because SAIC did not stop at the concept of superimposition (in the abstract) but instead provided a solution for achieving accuracy and consistency in image registration, SAIC’s claims are not directed to an abstract idea.
That’s just more of the usual from CAFC. It’s an Alice/Mayo test. More such examples were mentioned in recent days.
“PTAB Reversed Examiner’s 101 Rejection of Robotic Software Claims,” to name one example (but this is merely an examination stage refutation). A much higher level decision wound up as usual: “Zouli v Google (Fed. Cir. 2018); 101/CBM Case; CAFC Affirmed PTAB” (goodbye bogus patent).
“Another showing of disdain for the legal system or for justice itself?”Earlier today Patently-O was bashing rejection of patents using cartoons (those are typically anti-Alice). Another showing of disdain for the legal system or for justice itself? Every lost patent is a tragedy? Some politicians say “corporations are people” and patent lawyers certainly act as though “patents are people”. Maybe one day they’ll carry around billboards that say “patent lives matter”.
This came a few days after a misleading headline from Patently-O‘s Dennis Crouch — in a post which probably constitutes more of his PTAB baiting. How on Earth did he come up with a headline like “Climate Change is an Abstract Idea?”
Here’s how:
In the ex parte appeal, the PTAB has affirmed the examiner’s rejection on eligibility grounds – finding that the claims were directed to the abstract idea of “selecti[ng] data (temperature, radiation) obtained from known and existing technology and then using the data to make a correlation.”
[...]
With respect to Alice/Mayo step-two (“something more”), the PTAB found that the improvement offered by the invention “is an improvement in the application of the mathematical relationship in determining substance concentration, which is, itself, an abstract idea.”
The decision would look like a good candidate for a civil action challenge or appeal – except that the PTAB also found the claims obvious.
So what? That’s justice. It’s not “death squads” as the maximalists want us to believe. It’s just an invalidation of mere patents (or pieces of paper). No life or death at stake. Yet they use words like “kill”.
“No life or death at stake. Yet they use words like “kill”.”“Software Patent Application Killed by the PTAB with 101/Alice,” one of them said. He also said “smokes” (like “kills” and “survives”). “PTAB “Smokes” Another IBM Patent Application with 101/Alice,” says the outline. Notice the terminology of war. They make it sound like some sort of massacre or genocide; never mind if this isn’t criminal law or even immigration law but a bunch of mere patents. Another one about Section 101: “PTAB Affirms Examiner’s 101 Rejection of Method for Measuring IR Absorption by Increasing and Decreasing Temp of a Body…”
“Quite frankly, we don’t expect academic/scholarly honesty from these people. They’re in this occupation for the money, not principles.”At least he didn’t call that “Climate Change” like Dennis Crouch did (perhaps hoping to insinuate, as before, that patent rejection is the moral/scientific equivalent of climate change denial).
Quite frankly, we don’t expect academic/scholarly honesty from these people. They’re in this occupation for the money, not principles. Here’s an article by Charles Bieneman, who again uses the word “Survive” (war lexicon). Patents do not “survive” (the war narrative), they can just be upheld as valid or rejected as invalid. From Bieneman’s article:
A little less than a year after finding that claims of U.S. Patent No. 6,474,159, directed to an inertial tracking system, were patent-eligible under the Alice abstract idea test, the Federal Circuit has affirmed a decision of the USPTO’s Patent Trial and Appeal Board (PTAB) that claims of the ’159 patent have not been shown to be obvious under 35 U.S.C. § 103. Elbit Systems of America, LLC. v. Thales Visionix, Inc., No. 2017-1355 (Fed. Cir. Feb 6, 2018) (precedential) (opinion by Judge Wallach, joined by Judges Moore and Stoll).
[...]
The Federal Circuit sided with the patent owner, whose expert had explained the benefits of the two-step-method over the three-step method. And arguments that the PTAB improperly failed to acknowledge expert testimony that one of ordinary skill in the art would have understood prior art as disclosing the recited integration were merely an attempt to create legal error by looking at PTAB statements in isolation.
Patent maximalists took note of the above decision and Janice Mueller wrote: “Thales Visionix wins again! Elbit v Thales Visionix FedCir 2/6/18 affirms PTAB IPR determination that challenged claims of TV’s ‘159 patent would NOT have been obvious. TV’s expert witness testimony was critical in distinguishing prior art.”
As expected, Patently-O wrote about it:
In its IPR final decision, the PTAB sided with the patentee – holding that Elbit had failed to prove that the challenged claims of Thales patent were obvious. On appeal, the Federal Circuit has affirmed – holding that “substantial evidence” supported the finding.
[...]
On appeal, the Federal Circuit held that the PTAB was the best position to determine expert credibility and thus declined to disturb those credibility determinations. Trs. of Columbia Univ. v. Illumina, Inc., 620 F. App’x 916, 922 (Fed. Cir. 2015) (“The PTAB [i]s entitled to weigh the credibility of the witnesses.”) The challenger’s attorneys attempted to support their case with an explanation that PHOSITA would understand the meaning the prior art – That argument was rejected on appeal, however, as attorney argument rather than evidence based. Rather, to make the argument, the party should have actually presented evidence on the level of understanding of a person of skill in the art.
As we said before, not every Alice/§ 101 challenge/defense will result in patent rejection. It’s not a magic wand and it only works where it is applicable. Alice is applicable to just about every algorithm and it should also be applicable where algorithms are being ‘dressed up’ as ‘device’ — something which this new post deals with although it fails to grasp that “mechanical arts” is just a fancy term for machine. To quote: “A listener/reader pointed me in the direction of the recent oral argument at the Federal Circuit in Robert Bosch v. ITC. The case appears to concern patents of inventor/patent attorney Dr. Stephen Gass. The oral argument highlights that §101/Alice arguments are now making their way into the mechanical arts.”
“We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe).”Here in Europe and also in places like India and New Zealand loopholes were intentionally crafted to enable patenting of software by misportrayal thereof. Just claiming some algorithm to be executable/runnable on some particular machine does not change the fact that it’s abstract.
We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe). Over the past few decades patent scope had been stretched to the point where it became laughable. Some companies actually pursue patents on human genome as though it’s an invention and last month CAFC ruled in favour of a patent on GUIs. We hope that the Supreme Court will overturn that latter decision. █
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Posted in America, Courtroom, Patents at 5:13 pm by Dr. Roy Schestowitz
The decision concerns presentation or availability of evidence (§ 101 being more of a ‘footnote’)
Summary: A case which isn’t inherently about § 101 but about the evidence backing rejection of a patent (see above) is being spun by patent maximalists, who also resort to bashing of judges, academics, and Justices (Supreme Court) in the process
THE patent microcosm isn’t used to being publicly challenged. It is not accustomed to refutation. It just pays money to dominate the news feeds and spread its delusional vision. The EPO does this in Europe (because Battistelli has no qualm about corrupting media), but in the US it’s not the USPTO but the patent microcosm which does all this. This post is a quick debunking.
“It’s not applicable just to § 101 and there is nothing extraordinary about it.”A lot of it started when Patently-O‘s Dennis Crouch wrote about “Underlying Questions of Fact”, quoting the following passage: “While patent eligibility is ultimately a question of law, the district court erred in concluding there are no underlying factual questions to the § 101 inquiry. Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.”
So that’s about it. It’s not applicable just to § 101 and there is nothing extraordinary about it. Here is the original decision rather than the ‘twist’ from the patent microcosm. Michael Loney (part of the patent microcosm’s media) wrote: “Important statement from the Federal Circuit on the factual underpinnings of the eligibility analysis, in Berkheimer v HP…”
“The Federal Circuit is not the US Supreme Court, so whether that “sets new rules for fact finding” remains to be seen (in practice).”Important statement or important for the patent microcosm statement? Those two things aren’t the same.
As one patent-centric person put it: “FedCir vacates summary judgment of ineligibility on dependent claims due to representative treatment of independent. Court says eligibility is a question of fact. So… Rule 132 decs to traverse 101 rejections?”
“They maliciously imply that the courts have thus far rejected facts. That’s how patent trolls and extremists prefer to think of it.”Professor Risch wrote about the same decision that the “Federal Circuit sets new rules for fact finding in patentable subject matter determinations. Underlying determinations of conventionality must be supported. I see this one going en banc.”
The Federal Circuit is not the US Supreme Court, so whether that “sets new rules for fact finding” remains to be seen (in practice). A patent maximalist wrote: “The Fed. Cir. Held Today that the PTAB Does Indeed Need Facts, Not Just Official Notice, to Make a 101 Case” (he links to a site of a literal patent troll).
“Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB.”Notice the above headline. They maliciously imply that the courts have thus far rejected facts. That’s how patent trolls and extremists prefer to think of it.
A different patent-centric person (more balanced) said: “Berkheimer v HP FedCir 2/8/18 affirms cl 1 not 101 eligible BUT vacates SJ re cls 4-7; fact q’s exist under Alice step 2. “Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination.” Other cls indef.”
It’s all about that passage quoted in Patently-O. Another patent-centric person called it a “[m]omentous decision.” He said: “For the first time, FedCir vacated a SJ of patent ineligibility on ground that there is a genuine dispute of material fact underlying 101 determination. And, opinion holds that resolution requires meeting the clear and convincing standard for the defendant.”
Then came a trolls-connected crank who likes to bash professors whom he does not agree with. He is attacking Professor Lemley again: “If Lemley were any more transparent he’d be Saran Wrap Every “principle,” every “well reasoned argument” spouted from his fraudulent lips about evils/benefits of patents is a farce, a charade whose only purpose is to generate more billings for firm by introducing uncertainty […] opinion holds that resolution requires meeting the clear and convincing standard for the defendant” Im embarrassed to say I didn’t even notice how important that is… so far the panels have been ducking the SOP, and this is also extremely useful […] Listening to oral argument in Berkheimer case: http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2017-1437.mp3 … Apparent that Moore, Stoll, think support in specification for technical advantage can create dispute of fact to defeat 101 – pray for them on your panel if you have a #patent Alice rejection case!”
“And if that’s not bad enough (bashing academics you don’t agree with and claiming they’re not professors even though they are), then came bashing of SCOTUS…”Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB. The patent troll wrote: “How am I to take this “scholarly” paper seriously from a (co) author, an executive for Unified Patents & whose firm has a PTAB institution rate 33 points BELOW the industry average? And he knows “low quality patents”?”
The troll’s friend (who wrote pieces against the EFF for the troll’s site) dished some more dirt: “inter partes review is, as Congress intended, eliminating patents that appear to be of relatively low quality” papers.ssrn.com/sol3/papers.cf… No, IPR=rigged game where patent owner given 1 yr to defend vs infringer who has 6 mo head start, like giving runner 50m head start in 100m race”
“What pretty much all the above have in common is that they make it about § 101, striving to almost cast it “irrelevant” and in need of deprecation.”And if that’s not bad enough (bashing academics you don’t agree with and claiming they’re not professors even though they are), then came bashing of SCOTUS: “don’t know if there were method claims in those patents, but to some extent, the attorney was 100% right; if you’re going to say use of one physical generic machine (computer) can be abstract, why can’t use of another physical machine be similar abstract? SCOTUS gave us this mess…”
No, SCOTUS belatedly (decades late) dealt with the issue and did the right thing. Sure, patent trolls aren’t happy about it, but nobody is happy about patent trolls, either.
He’s basically ranting about other things, still upset that PTAB eliminates many software patents. What we have here is a proponent of lawless patent trolls who use bogus patents (which PTAB tackles) for blackmail. There have been all sorts of other attacks on PTAB from his account this past week, e.g. [1, 2, 3], not to mention veiled advocacy of software patents. His online friend was all over Berkheimer v HP [1, 2], as well as another precedential new decision. What pretty much all the above have in common is that they make it about § 101, striving to almost cast it “irrelevant” and in need of deprecation.
“The Internet can oftentimes be like an echo chamber, especially so-called ‘social media’, so patent maximalists are likely exposed only to voices to people who already agree with them.”Go back to the source from the Court of Appeals for the Federal Circuit (CAFC) (we have made this local copy, it’s 17 pages long, with § 101 mentioned about a dozen times, i.e. less than once per page) and read what was actually said. The Internet can oftentimes be like an echo chamber, especially so-called ‘social media’, so patent maximalists are likely exposed only to voices to people who already agree with them. █
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Posted in America, Deception, Patents at 4:09 pm by Dr. Roy Schestowitz
“Think about the children!”
Summary: In another desperate effort to construct a compelling if not pressing argument against the USPTO’s Patent Trial and Appeal Board (PTAB) Watchtroll and conservative friends argue on ‘behalf of’ teens
THERE’S nothing new when it comes to PTAB bashing. It’s always the same people and we know what they are after. They want a trolls-friendly USPTO and they also lobby for the UPC along with EPO management (UPC would help patent trolls in Europe). We’re talking about sites like Watchtroll and Patently-O, which link to one another’s PTAB bashing. They try to create scandals even where none exists.
“They try to create scandals even where none exists.”Yesterday, not too shockingly, Watchtroll advised people to withhold facts about patents in order to secure bogus patents. In the founder’s own words:
And for goodness sakes, don’t make any admissions! Admissions are unnecessary. Anything you may want to say in order to set up an argument you plan to make later can be argued later without making comparisons or unnecessary statements about the prior art in your patent application.
Admissions, i.e. divulging of facts, would be evil, according to Watchtroll. Sounds about apt, coming from Watchtroll anyway. The site associates with some rather deplorable people, who now construct a new narrative for PTAB. PTAB needs to be curtailed and why exactly? “Think about the children!”
“Admissions, i.e. divulging of facts, would be evil, according to Watchtroll.”Watchtroll, which habitually promotes the agenda of patent trolls, is sinking to new lows; it’s now exploiting teens (Tesia Thomas) to prop up the ludicrous lobbying illusion that PTAB “kills” inventors. It starts with a word about PTAB (“For the past two centuries before the America Invents Act was passed, patent laws in the United States were strong. There was no America Invents Act, which was created a PTAB to wipe out bad patents and patent trolls.”), then the closing words:
My guess is many celebrated inventors would be unceremoniously removed from the Hall of Fame if they were to have their patents reviewed as part of a quality enhancement program the USPTO calls the PTAB.
There are aspects other than age (gender and ethnicity) that are often exploited to construct such arguments. They try to associate patent maximalism with opportunity and diversity. Such nonsense from Watchtroll has become very common. They’re incredibly dishonest. How many inventors and startups were saved from trolls owing to PTAB? They don’t like to even entertain or discuss such an aspect.
“How many inventors and startups were saved from trolls owing to PTAB?”A few days later Watchtroll was smearing PTAB, yet again, over the meeting of the Patent Public Advisory Committee (PPAC), in which PTAB’s head/chief judge dispelled smears against PTAB. We also received some tweets from Watchtroll’s friends in which they bashed the judge and the court/board — an old Watchtroll tradition. One blog of patent maximalists then stated:
Since that time, the Board has continued to utilize expanded panels on issues of importance without changing the underlying result. However, the recent panel stacking notoriety continues to haunt all expanded panel decisions.
Dispelling this perception, the Chief Judge clarified the purpose and framework of expanded panels during yesterday’s quarterly meeting of the Patent Public Advisory Committee (PPAC).
How is an expansion of a panel a negative thing? If anything, it’s a positive, but PTAB bashers would climb over themselves just to come up with a perceived scandal. Here comes Dennis Crouch with his PTAB baiting. This is what he wrote:
PTAB says not eligible. Ex Parte Hall, APPEAL 2017-002594, 2018 WL 460997 (PTAB Jan. 12, 2018). The Board’s two step analysis is as follows: (a) the claims are directed to the abstract idea of “rules for conducting a wagering game;” (b) although the claims is tied to physicality, it does not provide “something significantly more than a claim on the abstract idea itself.”
Now they just try the old claim that PTAB does not present actual evidence — a claim we’ll cover separately in another post. In a later post, this one from Friday, Watchtroll attempted to throw another perceived scandal at PTAB. They cherry-pick from several thousands of decisions and always hunt for anything that can somehow discredit PTAB and incite SCOTUS, the USPTO’s Director and so on against it. But again, the lowest of low was calling PTAB judges impotent and days ago using voices of teenagers to frame PTAB as a threat to children. █
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Posted in America, Patents at 3:18 pm by Dr. Roy Schestowitz
But with Alice (and PTAB as its enforcer) hawking/circling over software patents, litigation moves elsewhere
Summary: A couple of new examples of software patents thrown into the mix in an effort to extract money from very large firms
TODAY and tomorrow we’ll write about PTAB, which helps raise patent quality at the USPTO. An interesting case of point was mentioned yesterday by Watchtroll (a PTAB basher) when it said that “Sony successfully challenged the validity of two U.S. patents owned by SSH Communications at the Patent Trial and Appeal Board (PTAB).”
SSH Communications must not be mistaken for the FOSS-centric Secure SHell (SSH). They just piggyback the brand. They did not invent and do not develop SSH. So good riddance to their lawsuit, no matter how evil Sony may be. These are software patents.
Facebook too has just come under fire from software patents. We previously wrote about Facebook’s own nefarious activity in the patent space, its support of PTAB notwithstanding. It is being hurt again by bogus software patents that would quite likely fail the Alice (Section 101) test. Except this time, for a change, the lawsuit got filed in Canada. As WIPR put it the other day:
Miami-based UnitedCorp has taken on photo-sharing platform Instagram in a patent infringement lawsuit filed at the Federal Court of Canada.
According to an announcement released on Friday, February 2, UnitedCorp owns Canadian patent number 2,887,596, called “User content sharing system and method with automated external content integration”.
UnitedCorp is not a real company; just check out its own announcements from this year. It’s all about patents and lawsuits. Why did a US-based company sue another US-based company in a neighbouring country? Perhaps they just know that Alice would eliminate any chances of winning the case. █
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Posted in America, Deception, Patents, Samsung at 2:54 pm by Dr. Roy Schestowitz
Related: Biased IAM’s Editor in Chief Goes on the Offensive Against (Software) Patent Sceptics, Still a Trolls Denialist
Reference: Thomas Edison Was a “Patent Troll” (composed by a proponent of patent trolls)
Summary: GE (growingly a troll-like entity, akin to IBM) and Samsung (frequent target of patent trolls) as covered by IAM, which is for the most part funded by patent aggressors and trolls in order to popularise their misleading narrative
THE US patent system, still awash with patent trolls, increasingly repels these trolls. The USPTO and the courts have become a lot tougher on them.
“The cuts are noticeable and some patent trolls close down ‘shop’ (they don’t actually have shops; they create and sell nothing).”Do not expect the patent microcosm to view that as a positive development as that makes the patent microcosm more and more obsolete. The cuts are noticeable and some patent trolls close down ‘shop’ (they don’t actually have shops; they create and sell nothing).
A short while ago somebody posted that same old worship of Thomas Edison, who was a businessman disguised as an ‘inventor’ (his business was cracking down on actual inventors). “11 February 1847,” it said. “Thomas Edison was born in Ohio. He’s been described as ‘America’s greatest inventor’.”
“GE is part of this event, so it gets to post puff pieces in IAM while IAM defends Edison (GE).”He was not an inventor, he just ‘stole’ or took credit for other people’s work and then patented that work.
IAM then responded with: “If Edison were alive now he’d be called a patent troll.”
“He was,” I told IAM. “But GE (with which Thomas Edison is sometimes synonymous) pays IAM now. So you’ll whitewash this troll.”
IAM has this new upcoming event sponsored by trolls like Sisvel, Finjan, and Finjan’s sponsor Microsoft (among many others). Earlier today IAM did a puff piece for GE Ventures, notably by giving a platform to the “licensing head” (patent parasite). GE’s relationship with IAM is better explained at the very end of this puff piece, which admits that this author is a “keynote speaker at [IAM's] IPBC Global in San Francisco on 11th June.”
“Samsung does not seem to be paying IAM. Why, after all, would a victim of so many lawsuits pay a proponent of such lawsuits?”GE is part of this event, so it gets to post puff pieces in IAM while IAM defends Edison (GE). Edison mythology is one of those mythologies that serve to prove money buys history (or victors write it). It was only hours ago that we wrote about IAM doing something similar with Finnegan and yesterday (less than 24 hours ago) we wrote about it doing the same with Battistelli. That’s just their business model.
The other day IAM wrote about Samsung’s history of being the target of the most lawsuits (“Teva takes top spot from Samsung as the most targeted defendant in patent litigation in 2017″), citing the Lex Machina data which we mentioned earlier today. To quote: “The numbers come courtesy of Lex Machina’s annual review of patent litigation, which is the data analytics platform’s deep dive into the headline litigation numbers for 2017. While the ranking of most targeted companies featured a typical blend of tech giants including Apple, LG, Amazon, ZTE, Microsoft and Huawei, there was a significant jump in the number of pharma companies on the list as nine made this year’s ranking (up from four last year). [...] Lex Machina’s analysis does go into even greater detail including a look at the profound impact of the Supreme Court’s decision in TC Heartland which has seen a huge chunk of cases that might have previously been filed in the Eastern District of Texas move to other districts such as Delaware.”
Samsung does not seem to be paying IAM. Why, after all, would a victim of so many lawsuits pay a proponent of such lawsuits? Watchtroll also wrote about Samsung earlier today, noting that some no-name parasite “filed [a patent lawsuit] in the Eastern District of Texas, alleg[ing] that wireless charging technologies incorporated by Samsung into their Galaxy S7 and S8 product lines copies technology which was presented to them by NuCurrent under the terms of a confidentiality agreement.”
“IAM itself is funded by quite a few patent trolls.”Samsung has many patents of its own (even some new ones mentioned in the news), but it rarely ever sues anyone. It’s not quite a Korean tradition (patent aggression). In any event, one must learn to dintinguish between companies that create things (Samsung makes a lot of things) and firms that have nothing but lawsuits associated with activity. Xperi was described as a “licensing company” some days ago by IAM. When IAM uses that term it typically means “troll”, but this term does not exist in IAM’s lexicon. IAM itself is funded by quite a few patent trolls. █
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Posted in America, Patents at 1:54 pm by Dr. Roy Schestowitz
Keep the USPTO’s Patent Trial and Appeal Board (PTAB) “great”
Summary: Now that Trump’s nominee, Andrei Iancu, begins his job at the USPTO it’s time to look at constructive advice going forward; technology firms, almost without a single exception, ask him to maintain the status quo, which is fostering less litigation by nuisance-causing entities
THE USPTO has a new Director. He comes from the patent microcosm and we therefore keep our hopes rather low. Thankfully, however, technology companies already urge him to shield PTAB, knowing perhaps that cynical oil giants pursue PTAB's abolishment. It’s not just oil giants, but it’s typically entities that are eager to destroy disruptive technology for litigation bucks.
A few days ago Law 360 wrote about MPEP, which can be used/invoked for invalidating the many bogus patents erroneously granted by the patent office. “USPTO Signals Support For New Basis To Invalidate Patents,” the headline said. To quote:
Patent litigators are closely studying a new “improper Markush grouping” section that was quietly slipped into the latest revision of the Manual of Patent Examining Procedure released by the U.S. Patent and Trademark Office last month, just days prior to the Senate confirmation of Andrei Iancu as the new director. The MPEP functions as an instruction manual for patent examiners, providing the current procedures examiners are required or authorized to follow in the examination of patent applications.
So this actually predates Andrei Iancu by a few days and is therefore unlikely to be his idea/manifestation. This isn’t post-grant like Inter Partes Reviews (IPRs) — a subject explored by Patent Docs and by Watchtroll a few days ago (mostly just the usual PTAB rants, this time from David Thibodeau).
PTAB is, in general, ‘creeping in’ when examiners wrestle with applicants, when entities like trolls threaten litigation and also when there’s ongoing litigation (even calls for embargo through the ITC). PTAB keeps broadening its scope and its workload too is increasing. This, suffice to say, helps raise the bar for patents.
A few days ago, United for Patent Reform said that the CCIA “provides some suggestions for the new @USPTO Director, Andrei Iancu, to put at the top of his to-do list,” citing a blog post we wrote about before. The CCIA was far too soft and ‘diplomatic’; it did nothing in an attempt to stop this patent microcosm ‘coup’, instead sucking up to Iancu before his actual appointment (Iancu has history with Trump).
IAM seems happy enough with Iancu. “Andrei Iancu now officially confirmed at the new USPTO director by 94-0 votes in the Senate,” it said. “The EPO gets its new president, Antonio Campinos, on 1st July. Both have a lot of work to do!”
One is a banker, the other a lawyer. No scientists allowed in patent offices anymore?
Well, either way, the press release about the appointment was soon promoted by Watchtroll and IP Watch reported commencement of work as follows: “By a vote of 94-0, the United States Senate on 5 February confirmed California intellectual property litigator Andrei Iancu as next director of the US Patent and Trademark Office (USPTO). The new Under Secretary of Commerce for Intellectual Property is currently managing partner of Irell & Manella LLP’s Los Angeles firm. The patent and trademark communities wished Iancu luck but said there are many issues at the agency that need his attention.”
“The @USPTO has made excellent progress on fighting #PatentTrolls and creating a system that works for #startups,” said a group that has past connections with the EFF (its staff). “RT to encourage its new director Andrei Iancu to keep it that way!”
The EFF has not said a thing yet. It never even mentioned Iancu at all (as far as we can see).
The High Tech Inventors Alliance (HTIA), a front group for large and small technology companies, wrote a sort of open letter to Iancu. John Thorne, a partner at Kellogg Hansen and general counsel of the HTIA, is pushing Iancu to keep PTAB strong. From Thorne’s article:
On Monday the Senate confirmed Andre [sic] Iancu as director of the U.S. Patent and Trademark Office, an office that most Americans barely know exists but that will deeply influence how well our country does at what it has long done better than anyone else — innovate.
An efficient, well-functioning patent system is among America’s most powerful levers for maintaining its global pre-eminence in R&D investment and productivity. But in this age of ever more sophisticated and complex technologies, the Patent Office is sure to make mistakes. Iancu’s challenge will be to maintain and strengthen two essential pillars of patent quality: efficient post-issuance review to weed out bad existing patents and rigorous examination of patent applications to strengthen the quality of new approvals.
A major step in bolstering quality control was the creation in 2011 of the Inter Partes Review process, a part of that year’s America Invents Act. Without the IPR process, patent granting would be biased toward error. The time that an examiner can devote to each application is limited, on average 19 hours per application. Applicants are not required to conduct prior searches, so gathering evidence can fall entirely on the examiner. And the burden of proof falls exclusively on the examiner, who must demonstrate that a patent should not be issued. No wonder that a 2010 study reported one junior examiner saying, “Rather than doing what I feel is ultimately right, I’m essentially fighting for my life.”
We’ll cover PTAB in some later articles. As we noted several months ago, Iancu professionally fought on both sides of PTAB (petitioner and ‘defendant’). Maybe he’ll come to appreciate that preserving if not increasing patent quality is in the best interest of the Office. █
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Posted in America, Asia, Patents at 1:05 pm by Dr. Roy Schestowitz
Reference: Inside How the Federalist Society & Koch Brothers Are Pushing for Trump to Reshape Federal Judiciary
Summary: The smearing of the Patent Trial and Appeal Board (PTAB) comes from right-wing entities in the United States and their exploitation of China for scaremongering purposes is quite noteworthy
YESTERDAY we published a couple of articles [1, 2] about how “China!” gets used as the catch-all excuse for patent maximalism. This upcoming webcast from Practising Law Institute (PLI) will, as usual, be about China. The title of it is “Chinese Patent Developments” and it’s not hard to imagine that they will say there.
As we noted last month, Koch-funded (Big Oil) think tanks are pushing hard against PTAB, i.e. they strive to lower patent quality at the USPTO in order to foster litigation. China is their excuse. 4 days ago Watchtroll said that a “Letter to President Trump on China IP Probe is Latest Sign of Conservative Support for Private IP Rights” (3 words that just allude vaguely to things like patents).
Watchtroll, in its typical fashion, took aim at PTAB and said: “By and large, these conservative pundits have argued for the abolishment of the Patent Trial and Appeal Board (PTAB) for the threats that it has posed to commercial investment in patented technologies, championing patents as private property rights.”
What conservative pundits? These ones?
As it turns out, there’s another upcoming event (a “seminar” from patent maximalists in New Jersey) and among the topic covered they have Oil States Energy Services, LLC v Greene’s Energy Group, LLC (a SCOTUS case regarding PTAB).
We can just about imagine what agenda will be pushed there. Big Oil companies certainly seem to be on the hunt for patents and lawsuits. It’s not entirely surprising.
Halliburton’s patent meddling in Europe is a subject we covered here a long time ago in many articles, e.g. [1, 2, 3]. “Halliburton Takes Fracking Fight From Oil Field to Patent Office,” according to this new report which was syndicated by other sites, stating:
Halliburton Co. isn’t content to limit its battle for market share with Schlumberger Ltd. to the oil field these days. It’s opened a new front in an unlikely place: the patent office.
It should not be so surprising that technology companies are more left-leaning and support PTAB, whereas right-wing entities go in the opposite direction and seek to destroy PTAB, using those old arguments like “small government” and “private property”. █
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Posted in America, Deception, Europe, Patents at 9:31 am by Dr. Roy Schestowitz
IAM: When “alternative facts” are up for sale (if one can afford them)
Summary: The difficulty associated with enforcing certain types of patents (more so after Mayo and § 101) means that litigious attitudes and reliance on law firms are decreasing; IAM strikes back with another one of its many lobbying events (designed to shape public opinion and influence key decision-makers)
THE concept of patents is pretty much universal, but not all patents are created equal. There are different sorts of patents (“families”) pertaining to or belonging to different domains. Speaking of them all as though they’re the same is the recipe for meaningless debates. Not all patents, for example, are a matter of life or death. Ethical aspects apply in some cases; sometimes pure economics.
“Not all patents, for example, are a matter of life or death.”As we discovered quite recently, EPO oppositions can crash companies. In other words, wrong decisions (or intentions) to grant can be truly harmful and pretty awful to workers. Things get pretty freaky when patents are being claimed on life itself. Forward Pharma lost 30% of its value (or valuation) in just one day at the end of January. This was due to an EPO decision. Yes, some sectors are over-reliant on patents; there’s no question about it. Here’s an example from two days ago: (in the UK)
Shares in Scancell Holdings PLC rose sharply on Friday morning as the company said its Moditope immunotherapy platform is to be granted a European patent.
Scancell shares were up 11% on Friday at 13.54 pence per share.
How good is this European Patent (EP)? Well, there’s lack of certainty under Battistelli, so Scancell Holdings PLC might be the next Forward Pharma (a one-day collapse).
“What we have here is a cross-continental fight taken up to the ITC and failing, having heavily relied on a patent from the USPTO.”Pacific Biosciences is meanwhile attempting to ‘compete’ by causing embargo of its rival, Oxford Nanopore. We wrote about it some days ago and received plenty of comments from people involved in this matter. It’s yet another one of those ITC examples where patent litigation is geared towards embargoes and bankruptcies, not innovation. Here is what the face-saving press release said (striving to justify waste of shareholders’ money, spent on litigation). This campaign of patent litigation by Pacific Biosciences backfired pretty badly. “Pacific Bio down 2% premarket on ITC patent ruling,” Wall Street media stated shortly thereafter. To quote: “The ITC interpreted the term “single-molecule sequencing” as limited to sequencing-by-synthesis approaches, determining that Oxford’s sequencing approach is not “single-molecule sequencing.””
What we have here is a cross-continental fight taken up to the ITC and failing, having heavily relied on a patent from the USPTO.
We have become increasingly supportive of the USPTO because it continues to deny patents on life and even software patents. PTAB helps and gravitates towards that. See the latest PTAB Life Sciences Report by John Cravero and Pharma Patents Blog writing about 35 U.S.C. § 101 rejections (not just based on Alice but also Mayo):
We’ve written previously about ex parte decisions of the Patent Trial and Appeal Board (PTAB) affirming patent eligibility rejections that seem to be inconsistent with the USPTO’s Subject Matter Eligibility Guidance. Apparently, applicants should be wary about appealing any rejection of a diagnostic method claim, because the PTAB may enter sua sponte patent eligibility rejections even if the examiner did not make a § 101 rejection.
Aside from § 101 there’s also 35 U.S.C. § 102. Hospira, based on this blog post, wins again. MedCo’s patent has been declared bogus as per § 102. To quote:
In the litigation, Hospira argued both (1) that the MedCo patents were invalid and (1) that Hospira’s proposed generic Angiomax drug would not infringe. The district court sided with MedCo on the first point (patents not invalid) but with Hospira on the second (patents not infringed). On appeal, the Federal Circuit has affirmed the non-infringement ruling but reversed on the on sale issue. The interesting portion is the on sale question.
Benjamin Anger and Jacob R. Rosenbaum wrote about it some days ago (very detailed).
“They get what they paid for. It’s pure lobbying/marketing.”As one can expect, the litigation ‘industry’ isn’t particularly happy about that. Many patents are being invalidated, which must be causing decrease in demand for patents and lawsuits (their main “offerings” or “services” or “products”).
There’s a “Pharma and Biotech IP Summit” being organised by IAM and as one can expect, the bill for this lobbying event is being footed by the main participants. “Finnegan is a Gold sponsor of IAM Magazine,” it says. There’s therefore a paid-for ‘talk’ (marketing). This not only helps Finnegan control the ‘debate’; it also keeps IAM on their ‘good side’ (maybe IAM will give Finnegan some more of these bogus ‘rewards’ or ‘endorsements’). “Jen Roscetti will present “The View from the United States” at @IAM_magazine’s #Pharma and #Biotech #IP Summit in London,” Finnegan wrote the other day. They get what they paid for. It’s pure lobbying/marketing.
“Either way, “Pharma and Biotech IP Summit” is an IAM sham. It’s sponsored by and dominated by the patent microcosm.”With all honesty, more people ought to speak out about IAM’s “business model”, which involves collecting cash, pushing agenda (in the form of ‘news’ or staged ‘debates’), offering bogus ‘endorsements’, and issuing 'studies' for people like Battistelli (bolstering his lies). There’s nothing benign about it. IAM is effectively a think tank and even some less senior insiders must have realise it. Several of them left, only to be replaced by relatively young and inexperienced writers. Tim Lince, it should be noted, is still listed as a writer at IAM, but he wrote nothing this year and only 1 (one!) blog post last year. Many writers left and perhaps associating with people Battistelli (as we last noted last night) won’t save them but only cause further harm.
Either way, “Pharma and Biotech IP Summit” is an IAM sham. It’s sponsored by and dominated by the patent microcosm. It’s like a propaganda platform facilitated by Joff Wild and his cohorts. He did the same for UPC (with cash from the EPO’s PR firm). █
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