06.13.18

When the USPTO Grants Patents in Defiance of 35 U.S.C. § 101 the Courts Will Eventually Squash These Anyway

Posted in America, Courtroom, Law, Patents at 1:35 am by Dr. Roy Schestowitz

Squashed again and again, but many examiners refuse to learn their lessons

Squash player

Summary: Software/abstract patents, as per § 101 (Section 101) which relates to Alice Corp v CLS Bank at the US Supreme Court, are not valid in the United States, albeit one typically has to pay a fortune for a court battle to show it because the patent office (USPTO) is still far too lenient and careless

THE USPTO, together with the Patent Trial and Appeal Board (PTAB), isn’t what it used to be. PTAB increasingly gets involved in examination itself, instructing examiners to reject applications while habitually citing 35 U.S.C. § 101 (we used to give many examples of that, but we stopped some months ago). This means that it’s already getting a lot harder for examiners to grant software patents unless they’re disguised using vague buzzwords (in the US it’s nowadays fashionable to add words like “cloud” or “blockchain”).

“…it’s hugely expensive (if not infeasible) to legally challenge entire pools like MPEG-LA’s.”Oppositions to US patents or patent applications appear to be on the rise (we have not seen all the associated figures*) and a couple of days ago we wrote about opposition to Google. Google is “trying to patent software,” according to a new article which says that the “software in question is a compression technique called asymmetric numeral systems (ANS), and was devised by a computer scientist at Jagiellonian University in Poland, Jarek Duda, who says that he invented it in 2014.”

Oddly enough, the EPO allowed compression algorithms to be patented, as Benjamin Henrion noted a few days ago in relation to this story. But would such patents survive a court’s challenge? We very much doubt it, but such patents typically get bundled together with other software patents inside patent pools; it’s hugely expensive (if not infeasible) to legally challenge entire pools like MPEG-LA‘s.

Anyway, the US courts will probably make up for the USPTO’s failures when it comes to handling of such patents. In Blackberry v Facebook, based on this new article, it seems apparent that Facebook knows software patents are worthless, so citing Alice it challenges the very validity of BlackBerry’s patents, no matter the alleged infringement thereof:

Facebook has turned to familiar counsel to defend a high-profile patent attack by BlackBerry Ltd.

Cooley partners Heidi Keefe, Mark Weinstein and Michael Rhodes say that four of the nine BlackBerry patents, asserted in March against Facebook messaging and notification technology, are eligible for patent protection under Section 101. The same triumvirate has represented Facebook in virtually all of its patent litigation.

The patents are directed at “ancient concepts—who gets a message, how it is sent and the manner of notification,” states Facebook’s motion to dismiss, filed Friday and signed by Keefe. “They take abstract concepts and apply them ‘on a computer.’ This is not enough to be patent-eligible.”

The 31-page motion includes visual aids, a staple of Keefe’s advocacy, including stock photos of an information kiosk at a shopping center and a stack of “while you were out” message pads.

[...]

Facebook’s motion to dismiss is premised on the Supreme Court’s Alice decision, which has been used to defeat numerous software technology patent suits at an early stage. But the U.S. Court of Appeals for the Federal Circuit recently held that Alice motions can involve fact issues that must be decided by juries. BlackBerry’s complaint includes detailed allegations that its inventions are not “well-understood, routine or conventional.”

Much of the press focuses on Facebook patents right now (so far this week; see [1-4] at the bottom), albeit not because of these patents but because of privacy concerns. There’s a similar discussion about Uber trying to patent software in spite of software patents being bunk and patent-ineligible in the US. To quote:

As a matter of good practice, tech companies typically patent every idea they come up with, regardless of whether or not they plan to implement it. And with good reason, patent trolls love targeting tech firms in jurisdictions that tend to give frivolous lawsuits far more leeway than they otherwise deserve. Consequently, it’s not uncommon to come across downright bizarre patents that will never see the light of day. At the same time, sometimes you come across a quirky patent that is equal parts crazy and equal parts genius. A recent patent filing from Uber seems to encompass just that.

Uber’s patent merely describes the assessment of data gathered through means which are peripheral to the software. Section 101 would almost certainly void such a patent.

How about USAA’s lawsuit? There has been lots of attention paid to it.

As we noted two days ago, USAA is sometimes a patent bully that uses what seems to be software/abstract patents. USAA is sometimes on the receiving end of patent lawsuits and is hoarding software patents [1, 2, 3, 4, 5]. This latest lawsuit has since then been covered in general news sites that say “Wall Street giant, Wells Fargo (WFC), in the spotlight once again after USAA accuses the former of patent infringement.”

We now see this also in niche sites about payments and American Banker, which is also quite mainstream.

As we argued on Sunday, nothing suggests that anything concrete was patented, but it’s up for judges to decide. Section 101 comes to mind. Judge Bryson has just dealt with 35 U.S.C. Section 101 albeit not in the context of software but of “claiming patent protection for a natural law.” (Pernix Ireland Pain Ltd. et al v Alvogen Malta Operations Ltd.)

As Docket Navigator summed it up:

The court denied defendant’s motion to reconsider an earlier order granting plaintiff’s motion for summary judgment that the asserted claims of its pain treatment patents did not encompass unpatentable subject matter.

It isn’t about software but about Section 101, which also encompasses decisions such as Mayo.

Either way, there are always those desperate and delusional patent law firms out there which ‘pull a Berkheimer‘ any time Section 101 gets brought up, insinuating — rightly or wrongly — that evidence is lacking/insufficient. Dechert LLP’s Robert D. Rhoad and Michael A. Fisher are the latest to attempt to ‘pull a Berkheimer‘ (a Federal Circuit decision from several months back). Here’s what they wrote; the background is of relevance:

In 2014, the Supreme Court established a two-prong test for determining whether a patented invention claims patent-eligible subject matter under 35 U.S.C. § 101: first, courts ask whether the claim is directed to a patent-ineligible concept—i.e., a law of nature, natural phenomenon, or abstract idea; and if it is, they then search the claim for an “inventive concept” that is “sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself.” Alice Corp. v. CLS Bank, Int’l, 134 S. Ct. 2347, 2355 (2014). Under the second prong, if the limitations of the claim only involve “‘well-understood, routine, conventional activit[ies]’ previously known to the industry,” it lacks the required “inventive concept.” Id. at 2359. Since Alice, district courts have been invalidating an unprecedented number of patents on § 101 grounds at the pleadings stage or on summary judgment.

At the end, in spite of Berkheimer barely being brought up and accepted by judges, they say this:

Accused infringers can still cite numerous Federal Circuit cases affirming the invalidation of patents at the pleadings or summary judgment stage, and the court has stated that it casts no doubt on the propriety of those cases. See, e.g., Berkheimer II, 2018 WL 2437140, at *3. However, the Berkheimer and Aatrix line of decisions give patentees a powerful tool to fight against invalidation of their patents before trial.

Well, how often have Berkheimer and Aatrix been used successfully by the plaintiff? Almost never. Or almost a handful of times perhaps, i.e. perhaps once a month. Those who resort to Berkheimer and Aatrix as a sort of “appeal to authority” clearly don’t know what they’re talking about or are deliberately lying. Virtually nothing has changed for the better as far as lawyers are concerned. No ‘pendulum’ has ‘swung back’, unless one asks wishful thinkers and think tanks like IAM.
______
* It should be noted that oppositions are also soaring in Europe and by year’s end it’s expected/estimated that patent filings will have declined in the US.

Related/contextual items from the news:

  1. Facebook Tells Congress It Hasn’t Used Eye Tracking Patents
  2. Facebook DENIES it’s building eye-tracking software despite holding two patents for the technology
  3. Facebook denies building eye-tracking software but says if it ever does, it will keep privacy in mind
  4. Facebook denies building eye-tracking software

    Facebook denied building eye-tracking software in its response to questions from Congress released Monday but said if it ever did build out the technology, it would take privacy into account.

    The social media company holds at least two patents for detecting eye movements and emotions, which it said “is one way that we could potentially reduce consumer friction and add security for people when they log into Oculus or access Oculus content.” Oculus is a virtual reality platform that Facebook bought in 2014.

    The company provided a written response to unanswered questions from Congress on its data use, privacy policy and its ad-based business model. Facebook CEO Mark Zuckerberg was asked about its technologies and potential uses by lawmakers during an appearance before Congress in April.

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

This post is also available in Gemini over at:

gemini://gemini.techrights.org/2018/06/13/uspto-and-35-u-s-c-sec-101/

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. The Next Generation of Free Software (or Software Freedom) Activism, Tackling Newer Problems

    New challenges as labour rights and human rights are further eroded, thanks to 'high' 'tech' with its very 'innovative' 'features'



  2. Mass Litigation Over the Salary Adjustment Procedure (SAP), Basically an Attack on All EPO Staff, Even EPO Pensioners

    “Importance of a binding and unambiguous erga omnes declaration” stressed by staff representatives of the EPO in a new letter to Benoît Battistelli‘s successor of choice, António Campinos, who has done nothing so far except attacking (or robbing) EPO staff, even EPO pensioners



  3. EPO 'Dialogue' With Staff Representatives is as Dead as 'Dialogue' With the Union

    “Yet another failure of social [sic] dialogue [sic] for Mr Campinos,” according to staff representatives, who rightly bemoan the Office president not giving a damn about staff; things quickly deteriorate in Europe’s second-largest institution, which does even worse things than granting loads of illegal European software patents (harming software producers and users alike)



  4. The FSF Needs to Reject OSI (and Open Source) Along With Much-Needed Rejection of the GNOME Foundation (Not the Same as the GNOME Project)

    Response to a good little speech (unscripted apparently) by Geoffrey Knauth, who explained his position on Open Source about a year ago



  5. Links 11/5/2021: Bodhi Linux 6.0, Coreboot 4.14, and DragonFly BSD 6.0

    Links for the day



  6. IRC Proceedings: Monday, May 10, 2021

    IRC logs for Monday, May 10, 2021



  7. Keynote by FSF President Geoff Knauth and Executive Director John Sullivan

    To quote the source: “FSF president Geoff Knauth became the president of the FSF in 2020, but has served on the FSF board of directors for over twenty years. FSF executive director John Sullivan started work with the FSF in 2003, and has never stopped since, with past roles including the FSF’s first Campaigns Manager and later the Manager of Operations.”



  8. Richard Stallman on Companies That Are “Only Pretending to be American Companies”

    Dr. Richard Stallman, the Free Software Foundation's founder, speaks about US politics being captured and dominated by large and multinational corporations in pursuit of just money and power



  9. Last Night's Talk by Richard Stallman About Software Freedom

    An inspiring new talk reminds many of us why loads of people continue to support the founder of the Free Software Movement



  10. Links 10/5/2021: Huawei's GNU/Linux Laptops and Kotlin 1.5.0

    Links for the day



  11. Richard Stallman on Writing rm, ls, and cp (Also Working on Bison)

    Dr. Richard Stallman, the Free Software Foundation's founder, explains what programs he developed in the eighties



  12. Raise the Roof

    Out comes the taxpayers’ subsidy, assured; with military the sky is the limit (and bailout guaranteed)



  13. Richard Stallman Replatformed 10 Hours From Now

    Link to the talk (when it goes live)



  14. [Meme] Bill Says, Bill Saves

    Bill Gates seems more likely to be indicted than to win a presidential election/term



  15. IRC Proceedings: Sunday, May 09, 2021

    IRC logs for Sunday, May 09, 2021



  16. According to the Wall Street Journal, Bill Gates’s Relationship with Jeffrey Epstein Caused the Bill-Melinda Divorce (While the Media Deflected to Dr. Stallman, Using a Phony 'Scandal')

    It’s becoming rather obvious that there’s real substance to accusations that Mr. Gates was in some sense enabling Jeffrey Epstein; while Gates-funded media told us that he was saving us from climate change and a pandemic (PR stunts for empathy and sympathy) Melinda worked really hard to distance herself from him, the father of her kids



  17. [Meme] Bill, What's Your Opinion?

    While it's ludicrous to insinuate that Mr. Gates somehow "started" COVID-19 he certainly "rode the wave" for reputation laundering purposes, profit, and distraction from scandals that precede the epidemic in China (and caused his marriage to break down)



  18. Links 10/5/2021: SystemRescueCD 8.03, KeePass 2.48 Released

    Links for the day



  19. How We Process and Upload Videos Hosted in Techrights

    With ffmpeg as the Swiss army knife (and various other utilities/programs ‘in between’) it’s possible to automate much of the pipeline associated with video production and self-hosting



  20. Richard Stallman's Free Software Speech in 2020 (FSF Turning 35)

    We've re-encoded (as WebM) the likely sole/only speech Richard Stallman gave about his movement last year; today seems like a suitable time to republish it because tomorrow a British university/group will replatform him (to use their term)



  21. The Chaos Theory

    Making GNU/Linux less stable and less predictable isn't good for GNU/Linux users; but it certainly helps sell Red Hat support contracts and vexation inside the community weakens Red Hat's competitors



  22. Gemini and Techrights: Still Growing in Gemini Space and Always Supporting/Loving the Protocol

    As we continue to expand in Gemini space (where our very large site became a very large and likely the largest capsule) it's worth explaining some of the overlooked merits of the protocol; unlike the World Wide Web (WWW) it does not impose things on the user/visitor, who is more or less in charge



  23. Links 9/5/2021: KDE Frameworks 5.82.0 Release and Patents Related to COVID Subjected to Waivers

    Links for the day



  24. Act More 'Professional' to Appease Mobs

    We should all think alike, dress alike, and like everybody (especially the business overlords)



  25. IRC Proceedings: Saturday, May 08, 2021

    IRC logs for Saturday, May 08, 2021



  26. Some Background on the Free Speech Society at the University of Buckingham, Where Richard Stallman is Being 'Replatformed'

    A private British university, the University of Buckingham, will 'host' (virtually) the most-defamed person in the Free software world; the Free Speech Society is only two years old and rationality for its existence is explained by its co-founder James Oliver



  27. Web Sites or News Sites Perish When Their Arguments Are Weak and/or Invalid

    "Just be honest!" is a simple motto for any site; but some sites sell out in pursuit of money or grandiosity, unlike us (we turned 14.5 years old on Friday)



  28. GNU/Linux Turns 38 (in 4 Months From Now)

    Contrary to what the Linux Foundation wants you to think, the operating system turns 38 later this year



  29. Richard Stallman: Steve Jobs Did Some Very Bad Things

    Dr. Richard Stallman told me about Steve Jobs that he had helped digitally imprison computer users



  30. GNU/Linux Founder Richard Stallman to Give a Talk at the University of Buckingham Tomorrow (Live Stream)

    Tomorrow it will be possible to watch this new talk live using Free software


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts