06.20.18

Gemini version available ♊︎

Patent Extremists Are Unable to Find Federal Circuit Cases That Help Them Mislead on Alice

Posted in America, Patents at 2:16 am by Dr. Roy Schestowitz

Freedom to develop software (code) with lower risk of patent litigation in the US

Dolphin

Summary: Patent extremists prefer talking about Mayo but not Alice when it comes to 35 U.S.C. § 101; Broadcom is meanwhile going on a ‘fishing expedition’, looking to profit from patents by calling for embargo through the ITC

IN RECENT years the US Supreme Court (SCOTUS) guided the USPTO into a harder approach towards software patents; if there’s nothing “hard” (as in non-abstract), then a patent isn’t suitable ‘protection’, maybe copyrights at best. This has always made perfect sense to actual software developers, but policy was perturbed by lawyers for their selfish interests.

“This has always made perfect sense to actual software developers, but policy was perturbed by lawyers for their selfish interests.”The Federal Circuit has taken SCOTUS decisions such as Mayo and Alice into account; so did the Patent Trial and Appeal Board (PTAB), which is basically a lot more efficient and is technically part of the Office.

“This case had nothing to do with software.”At the start of the year there were a few Federal Circuit outcomes (decisions) which patent maximalists were able to spin in order to market software patents; but nothing of that kind has happened for months. Watchtroll, failing to cherry-pick any ‘convenient’ cases, would rather speak of Vanda Pharmaceuticals — a case that we’ve mentioned here before (albeit not much because it’s really about Mayo, not Alice). John M. Rogitz (Rogitz & Associates) wrote about this USPTO “memo [which] dives into the Federal Circuit’s holding, noting that “[t]he Federal Circuit distinguished Mayo, stating: ‘The inventors recognized the relationships between iloperidone, CYP2D6 metabolism, and QTc prolongation, but that is not what they claimed. They claimed an application of that relationship. Unlike the claim at issue in Mayo, the claims here require a treating doctor to administer iloperidone.’…As a result, the Federal Circuit held the claims in Vanda patent eligible under the first step of the Alice/Mayo framework…because the claims ‘are directed to a method of using iloperidone to treat schizophrenia,’ rather than being ‘directed to’ a judicial exception.””

This case had nothing to do with software. The following day Theodore Chiacchio (also in Watchtroll) persisted with Mayo:

This article examines Supreme Court and Federal Circuit analyses of patent eligibility under 35 U.S.C. § 101 where the patent claims at issue were directed to Life Sciences-related technologies. I first examine this topic in the context of composition of matter patent claims and then in the context of method claims. As reflected in the below discussion, while the § 101 case law is fairly straightforward with respect to composition claims, the case law is murkier when it comes to method claims.

Suffice to say, this has nothing to do with software or even computing. We’re watching that domain closely and there’s no rebound there of any kind; software patents are pretty much dead.

“We’re watching that domain closely and there’s no rebound there of any kind; software patents are pretty much dead.”Patent Docs too has meanwhile cherry-picked just one case (so far this week): Akeso Health Sciences, LLC v Designs for Health, Inc.

This one does not even related to § 101 but to § 286. “Patentee Equitably Estopped from Asserting Patent Due to 10-Year Delay in Filing Suit,” their outline says. Here are some portions:

Earlier this year, in Akeso Health Sciences, LLC v. Designs for Health, Inc., District Judge S. James Otero of the U.S. District Court for the Central District of California granted a motion for summary judgment filed by Defendant Designs for Health, Inc. (“DFH”), in which DFH argued, inter alia, that Plaintiff Akeso Health Sciences, LLC should be equitably estopped from asserting U.S. Patent No. 6,500,450 due to Akeso’s ten-year delay in filing suit. Akeso had filed suit against DFH for infringement of the ’450 patent, which relates to a dietary supplement for the treatment of migraine headache, asserting that DFH’s manufacture and sale of the migraine treatment product Migranol indirectly infringed the asserted claims due to various instructions and implications on the label.

[...]

The Court indicated that its finding was further bolstered by 35 U.S.C. § 286, which precludes a patentee from recovering for any infringement committed more than six years prior to the filing of the complaint. In particular, the Court explained that “the patentee’s failure to preserve over four years’ worth of potential lost profits is reasonably interpreted as an abandonment of its claims.” With respect to the first element of equitable estoppel, the Court therefore found that “the patentee, through misleading conduct (or silence), [led] the alleged infringer to reasonably infer that the patentee [did] not intend to enforce its patent against the alleged infringer,” quoting Radio Sys. Corp. v. Lalor, 709 F.3d at 1130.

We don’t typically write about the absence of something, but it’s certainly noteworthy that these patent maximalists fail to find anything ‘positive’ (to them) to report about Alice. No news is good news in that regard…

“Any time there’s a lawsuit or a call for embargo they pounce at the opportunity to promote it. They don’t care about technology, only legal bills.”Then there’s Broadcom’s ITC complaint that we covered last week (after Reuters had covered it). We covered ITC issues a week earlier and Broadcom’s flirtation with this strategy early last month, not too long after Qualcomm merger/takeover attempts (stopped some months ago and it looks like NXP will be the one to get devoured). Watchtroll’s take on this is pretty revealing. Any time there’s a lawsuit or a call for embargo they pounce at the opportunity to promote it. They don't care about technology, only legal bills.

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 25/10/2021: EasyOS 3.1 and Bareflank 3.0

    Links for the day



  2. The Demolition of the EPO Was Made Possible With Assistance From Countries That Barely Have European Patents

    The legal basis of today's EPO has been crushed; a lot of this was made possible by countries with barely any stakes in the outcome



  3. The EPO’s Overseer/Overseen Collusion — Part XXII: The Balkan League - North Macedonia and Albania

    We continue to look at Benoît Battistelli‘s enablers at the EPO



  4. Links 24/10/2021: GPS Daemon (GPSD) Bug and Lots of Openwashing

    Links for the day



  5. Links 24/10/2021: XWayland 21.1.3 and Ubuntu Linux 22.04 LTS Daily Build

    Links for the day



  6. IRC Proceedings: Saturday, October 23, 2021

    IRC logs for Saturday, October 23, 2021



  7. Links 24/10/2021: Ceph Boss Sage Weil Resigns and Many GPL Enforcement Stories

    Links for the day



  8. GAFAM-Funded NPR Reports That Facebook Let Millions of People Like Trump Flout the So-called Rules. Not Just “a Few”.

    Guest post by Ryan, reprinted with permission



  9. Some Memes About What Croatia Means to the European Patent Office

    Before we proceed to other countries in the region, let’s not forget or let’s immortalise the role played by Croatia in the EPO (memes are memorable)



  10. Gangster Culture in the EPO

    The EPO‘s Administrative Council was gamed by a gangster from Croatia; today we start the segment of the series which deals with the Balkan region



  11. The EPO’s Overseer/Overseen Collusion — Part XXI: The Balkan League – The Doyen and His “Protégée”

    The EPO‘s circle of corruption in the Balkan region will be the focus of today’s (and upcoming) coverage, showing some of the controversial enablers of Benoît Battistelli and António Campinos, two deeply corrupt French officials who rapidly drive the Office into the ground for personal gain (at Europe’s expense!)



  12. Links 23/10/2021: FreeBSD 12.3 Beta, Wine 6.20, and NuTyX 21.10.0

    Links for the day



  13. IRC Proceedings: Friday, October 22, 2021

    IRC logs for Friday, October 22, 2021



  14. [Meme] [Teaser] Crime Express

    The series about Battistelli's "Strike Regulations" (20 parts thus far) culminates as the next station is the Balkan region



  15. Links 23/10/2021: Star Labs/StarLite, Ventoy 1.0.56

    Links for the day



  16. Gemini on Sourcehut and Further Expansion of Gemini Space

    Gemini protocol is becoming a widely adopted de facto standard for many who want to de-clutter the Internet by moving away from the World Wide Web and HTML (nowadays plagued by JavaScript, CSS, and many bloated frameworks that spy)



  17. Unlawful Regimes Even Hungary and Poland Would Envy

    There’s plenty of news reports about Polish and Hungarian heads of states violating human rights, but never can one find criticism of the EPO’s management doing the same (the mainstream avoids this subject altogether); today we examine how that area of Europe voted on the illegal "Strike Regulations" of Benoît Battistelli



  18. The EPO’s Overseer/Overseen Collusion — Part XX: The Visegrád Group

    The EPO‘s unlawful “Strike Regulations” (which helped Benoît Battistelli and António Campinos illegally crush or repress EPO staff) were supported by only one among 4 Visegrád delegates



  19. [Meme] IBM Has Paid ZDNet to Troll the Community

    Over the past few weeks ZDNet has constantly published courses with the word "master" in their headlines (we caught several examples; a few are shown above); years ago this was common, also in relation to IBM itself; clearly IBM thinks that the word is racially sensitive and offensive only when it's not IBM using the word and nowadays IBM pays ZDNet — sometimes proxying through the Linux Foundation — to relay this self-contradictory message whose objective is to shame programmers, Free software communities etc. (through guilt they can leverage more power and resort to projection tactics, sometimes outright slander which distracts)



  20. [Meme] ILO Designed to Fail: EPO Presidents Cannot be Held Accountable If ILOAT Takes Almost a Decade to Issue a Simple Ruling

    The recent ILOAT ruling (a trivial no-brainer) inadvertently reminds one of the severe weaknesses of ILOAT; what good is a system of accountability that issues rulings on decisions that are barely relevant anymore (or too late to correct)?



  21. Links 22/10/2021: Trump's AGPL Violations and Chrome 95 Released

    Links for the day



  22. [Meme] How Corporate Monopolies Demonise Critics of Their Technically and Legally Problematic 'Products'

    When the technical substance of some criticism stands (defensible based upon evidence), and is increasingly difficult to refute based on facts, make up some fictional issue — a straw man argument — and then respond to that phony issue based on no facts at all



  23. Links 22/10/2021: Global Encryption Day

    Links for the day



  24. [Meme] Speaking the Same Language

    Language inside the EPO is misleading. Francophones Benoît Battistelli and António Campinos casually misuse the word “social”.



  25. António Campinos Thinks Salary Reductions Months Before He Leaves is “Exceptional Social Gesture”

    Just as Benoît Battistelli had a profound misunderstanding of the concept of “social democracy” his mate seems to completely misunderstand what a “social gesture” is (should have asked his father)



  26. IRC Proceedings: Thursday, October 21, 2021

    IRC logs for Thursday, October 21, 2021



  27. Links 21/10/2021: MX Linux 21 and Git Contributors’ Summit in a Nutshell

    Links for the day



  28. [Meme] [Teaser] Miguel de Icaza on CEO of Microsoft GitHub

    Our ongoing series, which is very long, will shed much-needed light on GitHub and its goals (the dark side is a lot darker than people care to realise)



  29. Gemini Protocol and Gemini Space Are Not a Niche; for Techrights, Gemini Means Half a Million Page Requests a Month

    Techrights on gemini:// has become very big and we’ll soon regenerate all the pages (about 37,500 of them) to improve clarity, consistency, and general integrity



  30. 'Satellite States' of EPO Autocrats

    Today we look more closely at how Baltic states were rendered 'voting fodder' by large European states, looking to rubber-stamp new and oppressive measures which disempower the masses


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