04.22.18

Gemini version available ♊︎

The Federal Circuit’s (CAFC) Decisions Are Being Twisted by Patent Propaganda Sites Which Merely Cherry-Pick Cases With Outcomes That Suit Them

Posted in America, Courtroom, Patents at 11:16 pm by Dr. Roy Schestowitz

Pulling a Berkheimer

Summary: The Court of Appeals for the Federal Circuit (CAFC) continues to reject the vast majority of software patents, citing Section 101 in many such cases, but the likes of Managing IP, Patently-O, IAM and Watchtroll only selectively cover such cases (instead they’re ‘pulling a Berkheimer’ or some similar name-dropping)

THE USPTO‘s examiner/examination guidelines may soon change. Ignore all the acronyms associated with that; also ignore the propaganda about it, courtesy of the patent trolls’ lobby*. We wrote a couple of rebuttals last week. Will the USPTO change the rules in lieu with a decision or two from CAFC? That partly depends on what CAFC does in the 90-day comment period/window. We’re therefore watching these things pretty closely.

Managing IP, which is a patent maximalists’ Web site, has managed to cherry-pick some patent which “survived” [sic] a Section 101 challenge at CAFC. Is it a software patent? Hell no! To quote:

In its important Vanda Pharmaceuticals v West-Ward Pharmaceuticals opinion, the Federal Circuit found the claims eligible at step two of the Mayo/Alice test whereas the district court found them eligible at step one

The headline from Managing IP says that a “patent survives Section 101 test at Federal Circuit” and as we explained many times before the word “survives” implies that the aggressor is the victim. As in, a company files a lawsuit and then pretends that its patents are being “attacked” and that it merely “survives” (not the defendant). This is gross spin or reversal of narratives; it’s so terrible a tactic which sometimes culminates in calling judges who assess legitimacy of patents “death squads” (as though they work for Stalin or Hitler).

“The headline from Managing IP says that a “patent survives Section 101 test at Federal Circuit” and as we explained many times before the word “survives” implies that the aggressor is the victim.”We certainly hope that patent administration and examination staff can see these propaganda sites for what they truly are; they attempt to come across as “professional” “journalism”, but they’re merely jingoism for a hostile agenda (involves threats, ruinous lawsuits, and forced/imposed bankruptcies).

Speaking of propaganda sites, Patently-O dresses up the propaganda as “scholarly” (clever ploy) and as we’ll show later today it’s back to PTAB bashing (the so-called ‘death squads’). Noting CAFC’s take on SCOTUS/Mayo (like the above which is more about Mayo than about Alice), Patently-O advocates patenting by “trick” (the word “trick” is actually in the headline) to bypass the law:

The claims at issue in Vanda were roughly parallel to those found unpatentable in Mayo v. Prometheus. In Mayo, representative claim 1 of the challenged Patent No. 6,355,623 was directed to treatment method that involved (a) administering a drug (6-thioguanine); and then (b) determining blood level of the drug. A low blood level (less than about 230 pmol per 8×108 red blood cells) indicates a lack of effectiveness and a need for a higher subsequent dose while a high blood level (greater than about 400 pmol per 8×108 red blood cells) indicates potential for toxicity and that the next dose should be reduced.

In finding the claim invalid, the Supreme Court unanimously held that the correlation between blood level, efficacy and toxicity was an unpatentable law of nature and that the administration and determination steps were already well known in the art and thus insufficient to transform the claim to a patent eligible invention.

In Vanda, representative claim 1 is directed to a method of treating a patient suffering from schitzophrenia by (a) determining whether the patient is genetically a poor metabolizer of the drug (CYP2D6 genotype) then (b) administering iloperidone to the patient (12-24 mg per day if good metabolizer; <12 mg per day if poor metabolizer) in order to reduce the risk of “QTc prolongation” for poor metabolizers.

First the dissent — Chief Judge Prost identified the similarity here and explained her position that “the asserted patent claims [are] directed to a law of nature.” At its crux, the invention began with the discovery of the health problems created by treating folks with lower CYP2D6 activity and recognition that a lower dose would be appropriate.

[...]

I believe that the invention should be patent eligible, the majority’s approach appears to latch onto simple patent drafting tricks as the basis for distinguishing Mayo — an approach directly rejected by the Supreme Court in Mayo.

Of course Patently-O “believe[s] that the invention should be patent eligible”; is there anything which Patently-O believes should not be patentable? Just look at the types the site hangs out with. Look at the constant glorification there of patent quantity (as if constant expansion in monopolies is blindfoldedly desirable).

“They tend to focus only on outcomes that suit them.”Michael Risch, another “scholarly” proponent of patent maximalism (he says he’s agnostic on software patents, but his past writings suggest otherwise) linked to Patently-O (an article from March) a few days ago. It’s about the Federal Circuit statistics, gathered by Jason Rantanen, himself a “scholarly” proponent of patent maximalism. To quote Professor Risch:

Jason Rantanen (Iowa) has already blogged about his new article, but I thought I would mention it briefly has well. He has created a database of data about Federal Circuit opinions.

How many of these cases ever get covered by the likes of Managing IP, Patently-O, IAM and Watchtroll? Not many. They tend to focus only on outcomes that suit them. By “them” we mean financial agenda (of theirs or of their target audience). It’s not about truth, justice, etc. Such selection bias is part of their propaganda pattern, which we’ll revisit later today in relation to the Patent Trial and Appeal Board (PTAB).
____
* Watchtroll and IAM, two sites that promote the interests of patent trolls and other patent extremists, are nowadays doing collaborations and puff pieces with each other. Here’s an example which is only hours old.

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 16/10/2021: Xubuntu 21.10 and DearPyGui 1.0.0

    Links for the day



  2. DuckDuckGo’s HQ is Smaller Than My Apartment

    Guest post by Ryan, reprinted with permission



  3. Post About Whether Vivaldi is a GPL violation Was Quietly Knifed by the Mods of /r/uBlockOrigin in Reddit

    Guest post by Ryan, reprinted with permission



  4. The EPO’s Overseer/Overseen Collusion — Part XIII: Battistelli's Iberian Facilitators - Spain

    The EPO‘s António Campinos is an ‘Academy’ of overt nepotism; what Benoît Battistelli did mostly in France Campinos does in Spain and Portugal, severely harming the international image of these countries



  5. From Competitive (Top-Level, High-Calibre, Well-Paid) Jobs to 2,000 Euros a Month -- How the EPO is Becoming a Sweatshop by Patent Examiners' Standards

    A longish video about the dreadful situation at the EPO, where staff is being ‘robbed’ and EPO funds get funnelled into some dodgy stock market investments (a clear violation of the institution’s charter)



  6. [Meme] Protecting European Patent Courts From EPO 'Mafia'

    With flagrant disregard for court rulings (or workarounds to dodge actual compliance) it seems clear that today's EPO management is allergic to justice and to judges; European Patents perish at unprecedented levels in national European courts and it should be kept that way



  7. Links 15/10/2021: Pine64's New PinePhone Pro and Ubuntu 22.04 LTS Codename

    Links for the day



  8. [Meme] GitHub Isn't Free Hosting, It's All About Control by Microsoft

    Deleting GitHub isn’t a political statement but a pragmatic decision, seeing how Microsoft routinely misuses its control over GitHub to manipulate the market



  9. With EPO 'Strike Regulations' Belatedly Ruled Unlawful, EPO Management May be Lowering the Salary Even Further by Introducing Outside 'Temps' or Casual Workers

    Institutional capture by an 'IP' (litigation) Mafia is nearly complete; with illegal so-called (anti) 'Strike Regulations' out the door, they're quickly moving on to another plan, or so it seems on the surface



  10. Links 15/10/2021: 95% of Ransomware Targets Windows

    Links for the day



  11. IRC Proceedings: Thursday, October 14, 2021

    IRC logs for Thursday, October 14, 2021



  12. The EPO’s Overseer/Overseen Collusion — Part XII: The French Connection

    The EPO‘s presidency (led by Frenchmen for nearly 15 years out of the past 18 years; Benoît Battistelli and António Campinos are both French despite their somewhat misleading surnames) is extremely unlikely to even be mildly scrutinised by the French delegates because of a web of nepotism and protectionism



  13. [Meme] Another Maladministration Meeting Comes to an End

    Did the EPO‘s overseeing body properly tackle Benoît Battistelli‘s illegal acts, authorised by that very same overseeing body? Don’t hold your breath as António Campinos continues to crack down on staff (maybe ILOAT will rule on it in 2030)



  14. Links 14/10/2021: LibreOffice 7.2.2, Happy Birthday to Jolla, Ubuntu 21.10, Devuan GNU+Linux 4.0, OpenBSD 7.0

    Links for the day



  15. [Teaser] What Miguel de Icaza Really Thinks of the CEO of Microsoft GitHub

    Following the opening of a new series about Microsoft GitHub we drop a little teaser today; we expect dozens of parts to be released in the coming weeks/months as facts are being validated and organised



  16. Splitting the Time to Cover More Leaks and Exposés

    We take stock of Part 11 of the ongoing EPO series (“EPO’s Overseer/Overseen Collusion”) and explain what caused various delays yesterday; we may have to up our pace a little in order to keep up with an influx of leaks and whistleblowers



  17. [Meme] Destroying the Workplace

    The working conditions at the EPO continue to worsen under the António Campinos regime, perpetuating the decade-long 'demolition project' of Benoît Battistelli and his cohorts in the complicit Administrative CouncilThe working conditions at the EPO continue to worsen under the António Campinos regime, perpetuating the decade-long 'demolition project' of Benoît Battistelli and his cohorts in the complicit Administrative Council



  18. Microsoft GitHub Exposé — Part I — Inside a Den of Corruption and Misogynists

    Today we commence a new series that implicates Microsoft, GitHub, Copilot, and Team Mono



  19. EPO Management Tricks EPO Staff Into Taking More Paycuts

    “Education and childcare reform” [sic] is an António Campinos "reform" in the same sense regressive salary reductions are just “adjustments” (euphemism); Electronic opt-in gaffes, according to staff representatives, show that the tradition of Benoît Battistelli carries on at the Office, taking away from staff for a few corrupt officials to milk the institution to death



  20. Links 14/10/2021: Whisker Menu 2.6.1 and KDE's Birthday

    Links for the day



  21. Links 14/10/2021: DragonFly 6.0.1 Released and Red Hat Loses Another Top Executive

    Links for the day



  22. IRC Proceedings: Wednesday, October 13, 2021

    IRC logs for Wednesday, October 13, 2021



  23. Süddeutsche Zeitung Became a Propaganda Arm of EPO Management (and by Extension Software Patents/Patent Lobbyists)

    EPO ‘genius’ António Campinos enjoys shallow press coverage, which echoes or resembles Benoît Battistelli‘s corruption of the media (paid-for fluff)



  24. GNOME (and Debian) Infringe Human Rights by Shipping Parental Control Software (Internally Called “Malcontent”)

    Guest post by Ryan, reprinted with permission



  25. No, JWZ, Discord is Not “IRC With Pictures”

    Guest post by Ryan, reprinted with permission



  26. The EPO’s Overseer/Overseen Collusion — Part XI: “General Bock” - Battistelli's Swiss Apprentice?

    The António Campinos-led EPO won’t be subjected to real oversight by the Administrative Council, which ‘met’ (online) earlier today; so we look at who in the Administrative Council did what; today we wrap up the parts about Switzerland (third part of three)



  27. Links 13/10/2021: Sparky 2021.10 and New Archcraft

    Links for the day



  28. Links 13/10/2021: Firefox Keylogger on (By Default), GNOME Platform Design Discussed

    Links for the day



  29. [Meme] [Teaser] Swiss Alexandre Benallas

    The EPO‘s French dictator, Benoît ‘Vichy’ Battistelli, might be relieved to hear that his enabler in the adjacent Switzerland also enlisted armed bullies to keep the population down (the father of António Campinos might know a thing or two about those; it’s why he fled to France)



  30. IRC Proceedings: Tuesday, October 12, 2021

    IRC logs for Tuesday, October 12, 2021


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