05.20.18

Software Patenting and Successful Litigation a Very Difficult Task Under 35 U.S.C. § 101

Posted in America, Law, Patents at 9:33 pm by Dr. Roy Schestowitz

Better not bother

Summary: Using loads of misleading terms or buzzwords such as “AI” the patent microcosm continues its software patents pursuits; but that’s mostly failing, especially when courts come to assess pertinent claims made in the patents

NO MATTER what patent law firms keep claiming, software patents are hard to get at the USPTO. They’re even harder to ‘sell’ to judges and juries; expert testimonies can ‘peel off’ the layers of buzzwords and demonstrate that a lot of software patents (whether they’re called “cloud” or “IoT” or whatever) boil down to algorithms or code, i.e. the domain of copyrights.

We’re not done writing about software patents. The subject needs to be constantly brought up because rebuttals are necessary. Many public events and news sites are still dominated by patent law firms. They tell audiences what they want them to believe rather than what is true.

Consider this example from 24 hours ago. The patent microcosm is still trying to figure out how to get software patents which courts — more so than examiners — would likely reject anyway. To quote the outline of this upcoming ‘webinar’ (lobbying/marketing):

Strafford will be offering a webinar entitled “Functional Claiming for Software Patents: Leveraging Recent Court Treatment — Surviving 112(f) and Disclosing Functional Basis for Software to Meet Heightened Standard of Review” on June 5, 2018 from 1:00 to 2:30 pm (EDT). Cory C. Bell and Doris Johnson Hines of Finnegan Henderson Farabow Garrett & Dunner will guide IP counsel on functional claiming in software patents and USPTO prosecution, examine recent court treatment, and explain how to navigate the issue of functionality given the uncertainties in the prosecution and litigation contexts.

Check out who’s on this panel (‘webinar’); basically nobody that has anything to do with software. It’s what’s commonly known as “circle-jerk”.

It has become fashionable to ‘dress up’ software patents as all sorts of things; the EPO likes three-letter acronyms such as “ICT”, “CII”, and “4IR”. A couple of days ago there was this press release titled “Sigma Labs Expands into Europe, Granted Patent for Monitoring Additive Manufacturing Processes” and it talked about software between the lines:

Sigma Labs has several additional patents pending related to its PrintRite3D technology. This recently granted patent is for the first application of 18 submitted over the past five years in the general domain of in process quality assurance.

This is an “assurance software company”, the product is pure software, their press release speaks of “proprietary software algorithms” and mentions “experience in software business development…”

They basically operate in my professional field (computer vision/3-D) and I expect them to pursue patents on algorithms (mathematics/geometry). But they will avoid phrases like “software patents”, knowing that terms like these have become dirty words (grounds for rejection/invalidation).

Many computer vision tasks are nowadays tackled by statistical models (I have done a lot of that personally); so they embrace terms like Machine Learning and sometimes Artificial Intelligence (AI). It just sounds so much more ‘trendy’.

Several days ago Bereskin & Parr LLP’s Isi Caulder and Paul Blizzard suggested painting bogus software patents as “AI” just to get patent grants:

Protecting and Navigating Intellectual Property for Artificial Intelligence Based Technologies

[...]

…AI data processing systems, has seen an increase of 500%. While increasing numbers of AI technology patents are issuing, as with other kinds of computer-implemented inventions, AI-based inventions are generally vulnerable to being considered ineligible subject matter.

These are all software patents. No question about it…

Buzzwords have taken over however — to the point where IP Watch now speaks of a UN-led international summit on artificial intelligence. The World Economic Forum, which keeps promoting the EPO’s “4IR” nonsense, has just published “Robot inventors are on the rise. But are they welcomed by the patent system?”

They’re talking about computer-generated patents which would merely make the entire system collapse by filling it up with junk. See this new paper titled “Patentability of AI-Generated Inventions: Is a Reform of the Patent System Needed?”

Here’s the abstract:

As technology advances, artificial intelligence (AI)-generated inventions – i.e., inventions created autonomously or semi-autonomously by computer systems – are deemed to becoming more common. The human ingenuity in such inventions is less visible, while at the same time the inventing activity becomes easier, as most of the mental effort is passed on to the AI. However, this scenario makes it harder to assess whether the invention possesses an “inventive step” – a condition for patentability that requires the invention to be non-obvious to a skilled person. Indeed, a given AI-generated invention might be non-obvious to a skilled person; but it will probably be obvious to a person that has access to a similar AI. The main aim of this research is to assess whether patent laws are fit for purpose with regard to the patentability of AI-generated inventions, in particular in what concerns the inventive step requirement. With that objective, the research carries out a comparative analysis of the inventive step (or non-obviousness) requirement in Japan, the European Union and the United States. The research will conclude with recommendations towards an international harmonization of the interpretation of, and practices related to, the inventive step requirement in the field of AI-generated inventions.

This is the whole “AI” hype gone out of control.

As we said at the start, the word “cloud” also gets (mis)used quite a lot. That just typically means “server”, but it’s supposed to sound a lot more advanced and novel/innovative.

The litigation firm of ‘former’ Microsoft staff (Bart Eppenauer, Shook, Hardy & Bacon L.L.P.) did some ‘cloudwashing’ of software patents last week. To quote some bits that name Free/libre software and patent trolls (“NPEs”):

Open Source Software is also in the cross-hairs of numerous cloud patent lawsuits. It’s no surprise that patent trolls would target open source, such as Sound View’s lawsuit against Fidelity directed at multiple OSS components, including jQuery, OpenStack Object Storage (Swift), Apache HBase, and Apache Storm. Sound View also filed earlier lawsuits against open source software usage of major cloud service providers such as Hulu, Facebook, Twitter and LinkedIn. What did come as a surprise were the patent infringement allegations that Citrix leveled against Avi Networks’ cloud application delivery platform for OpenStack, mentioned above in the context of cloud competitor lawsuits.

[...]

Overall, patent litigation filings in 2018 are on par, if somewhat below, the number of filings in 2017. However, in a fascinating development, the number of Non-NPE patent lawsuits exceeds the number of NPE lawsuits for the first time in years, according to Unified Patents Q1 2018: Patent Dispute Report.

[...]

On the other hand, the change in patent venue law and subsequent decline of the Eastern District of Texas as the hotbed of patent litigation ushered in by TC Heartland will require NPEs to continue evolving their litigation tactics. On balance, however, these actions collectively may increase the strength and certainty of U.S. patents after a decade of what many see as an assault on patent value by the Supreme Court in particular. If that trend holds, and patents become more powerful (and valuable), cloud patent lawsuits will certainly be on the rise in the coming years.

Calling such patents “cloud” something (in order to bypass Section 101) is a very old trick. How long will that work for? Section 101 (§ 101), once applied by courts rather than a sole patent examiner, tends to eliminate every such patent. There are quite a few examples of § 101 in action, including from the past week. In Dailygobble, Inc. v SCVNGR, Inc., according to this, the CBM patent “Survives” (they use that word to imply the plaintiff is the one coming under attack), but in a case involveing SAP § 101 came to the rescue and eliminated the patent at every level (repeatedly). Charles Bieneman explains:

The Federal Circuit has held that patent claims directed to “performing certain statistical analyses of investment information” are patent-ineligible under the Alice/Mayo abstract idea test and 35 U.S.C. § 101, thus affirming a District Court’s judgment on the pleadings. SAP America, Inc. v. InvestPic, LLC, No. 2017-2081 (Fed Cir. May 15, 2018) (precedential) (opinion by Judge Taranto), joined by Judges Lourie and O’Malley). In the second paragraph of its opinion, the court emphasized that brilliant innovation would not alone save patent-eligibility, nor could novelty and non-obviousness under 35 U.S.C. §§ 102 and 103.

The same blog also mentioned this § 112 case — same section as mentioned by Li Feng and Stacy Lewis at Watchtroll 3 days ago. § 112 isn’t of much interest to us, nor are these other cases [1, 2] where patents get invalidated or cases thrown out on another basis (not for being abstract).

§ 101 came to the rescue in Genetic Veterinary Sciences, Inc. d/b/a Paw Prints Genetics v LABOklin GmbH & Co. KG et al (last week). It’s another bogus/abstract patent that was granted by examiners and was found to be “Invalid Under 35 U.S.C. § 101″:

Following a jury trial, the court granted plaintiff’s motion for judgment as a matter of law because the asserted claims of plaintiff’s labrador retriever genotyping patent encompassed unpatentable subject matter and found that the claims were directed toward a natural phenomenon.

How about patents which pertain to “law of nature”? Here’s another new case, this one too having been covered by the Docket Navigator:

The court granted plaintiff’s motion for summary judgment because the asserted claims of its pain treatment patents did not encompass unpatentable subject matter and found that the claims were not directed toward a law of nature.

This is an actual court case, but sometimes it doesn’t even have to go this far. As we’ll show in our next post, a post about the Patent Trial and Appeal Board (PTAB), a lot of patents get denied before a lawsuit is even initiated. The courts agree with PTAB’s decisions most of the time and even refuse to accept most appeals. The “Federal Circuit held that all of the claims challenged in an IPR were obvious,” Patently-O wrote some days ago, “upholding the PTAB’s obviousness determination with respect to most of the claims but reversing its nonobviousness determination with respect to a few.”

It mentions sections 101 and 102/103 as follows:

In a divided opinion, the Federal Circuit held that all of the claims challenged in an IPR were obvious, upholding the PTAB’s obviousness determination with respect to most of the claims but reversing its nonobviousness determination with respect to a few. Praxair Distribution raises of a number of distinct, yet interrelated, issues concerning the cryptic, yet essential, printed matter doctrine: the opinion addresses the doctrine’s extension to mental steps, its implications for the relationship between sections 101 and 102/103, and the breadth of its functional-relation exception.

U.S. Patent 8,846,112 covers methods of distributing nitric oxide gas cylinders for pharmaceutical applications. Inhaling nitric oxide dilates blood vessels in the lungs and improves blood oxygenation, and it is approved for treating neonates with hypoxic respiratory failure. The prior art taught that inhaled nitric oxide may lead to pulmonary edema, a serious adverse event, in neonates with left ventricular dysfunction. The claims of the ‘112 patent address methods that build on this prior art. Roughly, the claims can be sorted into three groups: the informing claims, the informing-and-evaluating claims, and the informing-and-discontinuing-treatment claims. This commentary addresses each of these three groups of claims in turn.

As we shall show in our next post, after Oil States the momentum of attacks on PTAB’s credibility has mostly been lost. We don’t think there will ever be a rebound for patent maximalists and they too are starting to come to grips with it. █

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