Bonum Certa Men Certa

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

Better not bother

Solving crossword puzzle



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.

Recent Techrights' Posts

XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
 
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
Links for the day
The Danes Want GNU/Linux
David Heinemeier Hansson recently moved to GNU/Linux
Cory Doctorow Explains Why Software Freedom Matters, Whereas "Open Source" Misses the Point and Helps Monopolies
It's a very long article
BillPR (EpsteinGate-Bribed NPR) is Turning Into a Partial Slopfarm that Promotes Slop
"I went on a date with a chatbot!"
Two Weeks Passed Since Latest Large Wave of Microsoft Layoffs, More Expected Next Month
Blaming the debt on "AI" is just self-serving storytelling
There's Still Hope for the World Wide Web
Let's hope that the trajectory of the Web won't be leading us to over-reliance on Google, nor will it reward worthless slopfarms
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 14, 2025
IRC logs for Monday, July 14, 2025
Gemini Links 15/07/2025: Gemini "Style Sheets" and Switching From Microsoft GitHub to Codeberg
Links for the day
Coming Soon: Another OSI Scandal, This One Implicating Molly de Blanc
OSI has been fairly quiet lately
Outreachy & Debian pregnancy cluster, Meike Reichle evidence
Reprinted with permission from Daniel Pocock
Again, "Lunduke is Actually Sending His Audience to Attack People"
Microsoft Lunduke is not trying to "protect" Linux
One of the Most Hilarious Things About the Microsoft SLAPPs
It's so ridiculous
Financial Support for the Free Software Foundation or the GNU Project
The FSF has extended until Friday its fund-raising campaign
Illegally Hiding (or Demanding Secrecy Around) Illegal Requests or Attempts at Extortion
unlawful communications like threats
Gemini Links 14/07/2025: BOFH Archive, Updating Old Palm PDAS, and Nginx vs Slop Bots
Links for the day
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025