06.24.18

Gemini version available ♊︎

Stronger Patents or None at All: How the Greed of Patent Law Firms and the Patent Office Contributes to Bogus Software Patents Being Amassed

Posted in America, Patents at 10:12 am by Dr. Roy Schestowitz

Iancu and his colleagues at the USPTO should make the Office fit for purpose, not a patent-printing machine

Fitter, Faster, Stronger

Summary: Alice Corp. v CLS Bank continues to be the sole recent reference for handling of software patents; that being the case, it’s rather disturbing that patent law firms continue to recommend patenting of software and offer lousy excuses for that (mainly because they profit at the expense of those foolish enough to believe them)

THE strength of patents, as noted in the previous post, is determined by the goodness or the legitimacy of patents (based on prior art, inventive merit etc.) and it’s something that the EPO departs from whereas the USPTO reluctantly adopts. It begrudgingly adapts to SCOTUS and the Federal Circuit, which deals with plenty of appeal from district courts and the Patent Trial and Appeal Board (PTAB).

Whether it likes it or not, the USPTO will have to improve; already, as we showed early this year, PTAB helps examiners elevate the quality of patents it grants (many get rejected based on Alice). Thankfully, we have not grown tired of writing about patents. Even after 12 years! I’ve personally done that for about a decade and a half and seeing the progress made in the US and Europe it looks like advocacy does have an effect, albeit a very slow one.

“Whether it likes it or not, the USPTO will have to improve; already, as we showed early this year, PTAB helps examiners elevate the quality of patents it grants (many get rejected based on Alice).”Media coverage regarding patents is still quite appalling. It’s like the patent microcosm appointed itself “reporters” and is now writing the so-called ‘news’ about patents (more spam/ads that we’re keeping track of and taking stock of). When the media posts pure spam for patent law firms or ‘business’ (all new examples from the past week) we’re ever more convinced that sites like Techrights are necessary. There’s a reason why EPO scandals aren’t covered much by the media, certainly not in the US.

Scanning through the past week’s news feeds we see that software patents are still being granted by the Office (USPTO), e.g. this to Genpact (announced days ago). Here’s more on that one.

Why was it granted?

“In 2014, the Alice decision made it much harder to patent software in the USA, ” Cory Doctorow recalled a few days day in an article about something else.

Well before 2014 there was another case, which almost nobody brings up (ever). “A controversial ruling limiting software patents has been making a comeback,” Timothy B. Lee wrote. [via]

There’s a lot more beyond the summary and it looks like it took much research to produce, citing the eminent Mark Lemley.

Forty years ago this week, in the case of Parker v. Flook, the US Supreme Court came close to banning software patents. “The court said, ‘Well, software is just math; you can’t patent math,’” said Stanford legal scholar Mark Lemley. As a result, “It was close to impossible in the 1970s to get software patents.”

If the courts had faithfully applied the principles behind the Flook ruling over the last 40 years, there would be far fewer software patents on the books today. But that’s not how things turned out. By 2000, other US courts had dismantled meaningful limits on patenting software—a situation exemplified by Amazon’s infamous 1999 patent on the concept of shopping with one click. Software patents proliferated, and patent trolls became a serious problem.

But the pendulum eventually swung the other way. A landmark 2014 Supreme Court decision called CLS Bank v. Alice—which also marks its anniversary this week—set off an earthquake in the software patent world. In the first three years after Alice, the Federal Circuit Court, which hears all patent law appeals, rejected 92.3 percent of the patents challenged under the Alice precedent.

The shifting rules about software patentability reflect a long-running tug of war between the Supreme Court and the Federal Circuit. The Federal Circuit loves software patents; the Supreme Court is more skeptical.

That fight continues today. While the Federal Circuit has invalidated many software patents in the four years since the Alice ruling, it also seems to be looking for legal theories that could justify more software patents. Only continued vigilance from the Supreme Court is likely to ensure things don’t get out of hand again.

The 40-year-old Flook ruling remains a key weapon in the Supreme Court’s arsenal. It’s the court’s strongest statement against patenting software. And, while software patent supporters aren’t happy about it, it’s still the law of the land.

It’s a pretty good report. Thom Holwerda said “it’s a great article that looks at the history of the tug of war between the Supreme Court and the Federal Circuit.” (when it comes to software patents policy in the US)

Kevin E. Noonan, a patent maximalist, has meanwhile mentioned SCOTUS in relation to patent eligibility. SCOTUS, having reformed patent scope in the US, seems fine with the way things are nowadays. To quote:

Like Sherlock Holmes’ quiet dog, the significance of the Supreme Court’s patent eligibility jurisprudence following their decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc. and Alice Corp. v. CLS Bank Int’l is that there hasn’t been any. The Court has shown a similar reticence towards wading into the uncertain waters created by the Federal Circuit regarding the safe harbor created by the Hatch-Waxman Act, codified at 35 U.S.C. § 271(e)(1). Last Monday was the most recent instance of the Court’s refusal to address how the lower courts have implemented these statutory provisions in denying certiorari in Cleveland Clinic Foundation v. True Health Diagnostics LLC and Classen Immunotherapies, Inc. v. Elan Pharmaceuticals Inc.

[...]

Denying certiorari petitions cannot be used to interpret the Court’s views on whether the lower courts are properly applying its precedent; the Court frequently permits an issue to “percolate” through the courts and then chooses a case that, in their view provides a suitable vehicle for further clarification of the law. The Court has recently used this practice in other contexts (Gill v. Whitford; Benisek v. Lamone). In the meantime, however, patentees and the public await the time when the Court will deign to weigh in on either of these questions.

Seeing that Alice Corp. v CLS Bank just isn’t going away any time soon, the patent microcosm latches onto isolated and old CAFC cases. The anti-PTAB outfit Anticipat, for instance, is once again trying to prop up Berkheimer as though it is still relevant (it’s not, it’s old) and Scott Graham, in patent maximalists’ media, cherry-picks some low court’s case (Delaware District Court) to make it seem like Berkheimer is still relevant (it’s not). To quote the relevant part:

The chief judge of the busiest patent court in the country made it clear this week that he’s still going to grant at least some Section 101 motions at the summary judgment stage. Chief Judge Leonard Stark of Delaware recalled patent claims against Amazon Cloud Services that he’d thrown out last year, so he could reconsider them under the Federal Circuit’s new Berkheimer framework.

He threw them out again. “Although plaintiff tries to rely on expert testimony, here this is insufficient to create a genuine issue of material fact,” Stark wrote in Kaavo v. Amazon.com.

Kaavo is a software company that holds a patent that fairly bleeds ineligibility. The title is “Cloud computing lifecycle management for N-tier applications.” According to Stark, the patent is directed to the abstract idea of setting up and managing a cloud computing environment. Neither the claim language nor the specification discloses specific improved methods or systems of cloud computing, he added.

Kaavo argued that various dependent claims contained limitations that preserved their eligibility. For example, claim 11 describes “receiving security information; determining a requested security action based on the security information; and sending a security event based on the requested security action.”

It’s not to hard too understand why they try so desperately to keep Berkheimer in some headlines; a Delaware case, however, isn’t of much significant. Decisions often cite CAFC, not district courts and definitely not PTAB.

But don’t expect the lawyers to lie down and give up; some patent “Prosecution” and “Willfulness” so-called ‘webinars’ from the Intellectual Property Owners Association (IPO) and Practising Law Institute (PLI), respectively, are coming up. Such agenda-pushing by IPO and PLI has been covered here for a very long time. They just try to push litigation agenda, urging more people to sue (initiating ‘business’ both at the plaintiff’s and defendant’s side).

The truth of the matter is that most patents in question are ‘dead’ (futile inside the courts), so nobody would benefit from litigation except the lawyers. Those who claim otherwise are just wasting time and money of people wrongly led to believe otherwise. How about this third ‘webinar’ advertised some hours ago (along with the above) by Patent Docs? From the description: “Michael L. Kiklis and Stephen G. Kunin of Oblon McClelland Maier & Neustadt will provide guidance to patent practitioners on how to draft patent applications to overcome both Section 101 and AIA challenges.”

How can they honestly recommend pursuing software patents in 2018? Just look at the record. One retired attorney has just said that CAFC, the “Fed. Circuit Denied en banc Review of the Invalidation of Vote Verification Patent Claims under 101/Alice: https://dlbjbjzgnk95t.cloudfront.net/1055000/1055429/petition.pdf … ”

Another patent maximalist ranted: “Worst EVER: PTAB screws IBM patent applicant, invents NEW “abstract idea” and includes 180 pages of new material (including an unpublished dissertation) in decision to argue “fundamental building block” – affirm §101 rejection https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017001831-06-06-2018-1 … never seen IDS in an opinion!”

Software patents are rarely original, so PTAB does a fine job eliminating those. It’s simply applying Section 101 — something which many examiners have been failing to do (especially prior to Alice when guidelines were different).

We’re not against patents. Here’s an example of a newly-granted patent which is not software-related, but still… we carry on finding new patents being granted despite being evidently abstract. The USPTO continues to grant many such patents, but the courts would throw them away if challenged; that’s a deterrent for plaintiffs to ever initiate any legal action. A new example of a software patent in the US also comes from Apple. Apple should know algorithms aren’t patentable (such patents would not be enforceable in courts anyhow), but it’s going for it anyway. As Will Hill put it in Diapora, “just when the ridiculous patents against graffiti should be expiring…”

Here’s another new example; the Office needs to stop granting patents which courts would not honour; it’s self-harming. It merely reduces confidence in US patents.

We’ve also just noticed this kind of resurgence of “blockchain” as a surrogate for databases in software. Ropes & Gray LLP’s Leslie M. Spencer and Marta Belcher ride the blockchain hype wave in order to promote patents that are bunk and likely void. They did it twice [1, 2] in recent days and it’s part of a troublesome trend.

Walmart too is pursuing software patents disguised as "blockchain" and days ago an article was published about it. It was titled “Why Walmart filed a patent for blockchain, wearables and EHR data” (these patents are just software).

How about Fortune with “As Blockchain Grows, Companies Look to Avert a Patent War”? 5 days ago Michaela Ross published in “Bloomberg Big Law Business” a report that mostly quotes lawyers, as usual. Here’s a portion:

Blockchain patent wars may be looming, and companies are experimenting with preventive measures.

Startups and industry leaders, like IBM Corp. and Alphabet Inc.’s Google, are winning patents for the technology that is fueling cryptocurrencies and being applied to traditional businesses. They are also increasingly coordinating to uncover solutions—from cross-licensing and pooling patents to patent pledges—that would help ward off patent trolls and infringement lawsuits that plagued past tech revolutions, like the semiconductor or mobile phone booms.

“You’re seeing a much more aggressive effort of a nascent industry to create pools and a pool environment,” Josh Krumholz, co-leader of Holland & Knight LLP’s intellectual property practice, told Bloomberg Law. “It’s unsurprising to me because they’re obviously taking lessons from other industries like telecom.”

A surging number of blockchain experiments and related patent applications across various industries present ripe opportunities for patent assertion entities or trolls, as they’re often known, who could hamper innovation if not properly contained, patent attorneys say.

When Ross says “patent assertion entities or trolls” she means the likes of Erich Spangenberg with IPwe. IAM did a puff piece for him just before the weekend, calling his trolling “monetisation”.

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 4/12/2021: EndeavourOS Atlantis, Krita 5.0.0 Beta 5, Istio 1.11.5, and Wine 6.23; International Day Against DRM (IDAD) on December 10th

    Links for the day



  2. Another Gemini Milestone: 1,500 Active Capsules

    This page from Balázs Botond plots a graph, based on these statistics that now (as of minutes ago) say: “We successfully connected recently to 1500 of them.” Less than a fortnight ago more than 1,800 capsules overall were registered by Lupa, almost quadrupling in a single year



  3. [Meme] António Campinos and Socialist Posturing

    Staff of the EPO isn’t as gullible as António Campinos needs it to be



  4. António Campinos as EPO President is Considered Worse Than Benoît Battistelli (in Some Regards) After 3.5 Years in Europe's Second-Largest Institution

    The EPO's demise at the hands of people who don't understand patents and don't care what the EPO exists for is a real crisis which European media is unwilling to even speak about; today we share some internal publications and comment on them



  5. Media Coverage for Sale

    Today we're highlighting a couple of new examples (there are many other examples which can be found any day of the year) demonstrating that the World Wide Web is like a corporate spamfarm in "news" clothing



  6. Links 3/12/2021: GNU Poke 1.4 and KDDockWidgets 1.5.0

    Links for the day



  7. IRC Proceedings: Thursday, December 02, 2021

    IRC logs for Thursday, December 02, 2021



  8. Links 3/12/2021: Nitrux 1.7.1 and Xen 4.16 Released

    Links for the day



  9. Links 2/12/2021: OpenSUSE Leap 15.4 Alpha, Qt Creator 6

    Links for the day



  10. The EPO's “Gender Awareness Report”

    There’s a new document with remarks by the EPO’s staff representatives and it concerns opportunities for women at the EPO — a longstanding issue



  11. IRC Proceedings: Wednesday, December 01, 2021

    IRC logs for Wednesday, December 01, 2021



  12. EPO Staff Committee Compares the Tactics of António Campinos to Benoît Battistelli's

    The Central Staff Committee (CSC) of the EPO talks about EPO President António Campinos, arguing that “he seems to subscribe to the Manichean view, introduced by Mr Battistelli…”



  13. Prof. Thomas Jaeger in GRUR: Unified Patent Court (UPC) “Incompatible With EU Law“

    The truth remains unquestionable and the law remains unchanged; Team UPC is living in another universe, unable to accept that what it is scheming will inevitably face high-level legal challenges (shall that become necessary) and it will lose because the facts are all still the same



  14. Links 1/12/2021: LibrePlanet CFS Extended to December 15th and DB Comparer for PostgreSQL Reaches 5.0

    Links for the day



  15. EPO Cannot and Will Not Self-Regulate

    The term financialisation helps describe some of the activities of the EPO in recent years; see Wikipedia on financialisation below



  16. [Meme] Germany's Licence to Break the Law

    Remember that the young Campinos asked dad for his immunity after he had gotten drunk and crashed the car; maybe the EPO should stop giving diplomatic immunity to people, seeing what criminals (e.g. Benoît Battistelli) this attracts; the German government is destroying its image (and the EU’s) by fostering such corruption, wrongly believing that it’s worth it because of Eurozone domination for patents/litigation



  17. EPO Dislikes Science and Scientists

    The EPO's management has become like a corrupt political party with blind faith in money and monopolies (or monopoly money); it has lost sight of its original goals and at this moment it serves to exacerbate an awful pandemic, as the video above explains



  18. Links 1/12/2021: LibreOffice 7.3 Beta, Krita 5.0, Julia 1.7

    Links for the day



  19. Links 1/12/2021: NixOS 21.11 Released

    Links for the day



  20. IRC Proceedings: Tuesday, November 30, 2021

    IRC logs for Tuesday, November 30, 2021



  21. Links 1/12/2021: Tux Paint 0.9.27 and WordPress 5.9 Beta

    Links for the day



  22. [Meme] EPO Administrative Council Believing EPO-Bribed 'Media' (IAM Still Shilling and Lying for Cash)

    IAM continues to do what brings money from EPO management and Team UPC, never mind if it is being disputed by the patent examiners themselves



  23. The EPO's Mythical “Gap” Has Been Found and It's Bonuses for People Who Use Pure Fiction to Steal From Patent Examiners

    The phony president who has the audacity to claim there's a budget gap is issuing millions of euros for his enablers to enjoy; weeks ahead of the next meeting of national delegates the Central Staff Committee (CSC) tells them: "Events show that the delegations’ concerns about functional allowances have materialised. The lack of transparency and inflation of the budget envelope gives rise to the suspicion that high management is pursuing a policy of self-service at the expense of EPO staff, which is difficult to reconcile with the Office’s claimed cost-saving policy, and to the detriment of the whole Organisation."



  24. Video: Making the Internet a Better Place for People, Not Megacorporations

    Following that earlier list of suggested improvements for a freedom-respecting Internet, here's a video and outline



  25. Links 30/11/2021: KDE Plasma 5.23.4, 4MLinux 38.0, Long GitHub Downtime, and Microsoft's CEO Selling Away Shares

    Links for the day



  26. A Concise Manifesto For Freedom-Respecting Internet

    An informal list of considerations to make when reshaping the Internet to better serve people, not a few corporations that are mostly military contractors subsidised by the American taxpayers



  27. Freenode.net Becomes a 'Reddit Clone' and Freenode IRC is Back to Old Configurations After Flushing Down Decades' Worth of User/Channel Data and Locking/Shutting Out Longtime Users

    Freenode is having another go; after “chits” and “jobs” (among many other ideas) have clearly failed, and following the change of daemon (resulting in massive loss of data and even security issues associated with impersonation) as well as pointless rebrand as “Joseon”, the domain Freenode.net becomes something completely different and the IRC network reopens to all



  28. Jack Dorsey's Decision is a Wake-up Call: Social Control Media is Just a Toxic Bubble

    The state of the World Wide Web (reliability, preservation, accessibility, compatibility etc.) was worsened a lot more than a decade ago; with social control media that’s nowadays just a pile of JavaScript programs we’re basically seeing the Web gradually turning into another Adobe Flash (but this time they tell us it’s a “standard”), exacerbating an already-oversized ‘bubble economy’ where companies operate at a loss while claiming to be worth hundreds of billions (USD) and generally serve imperialistic objectives by means of manipulation like surveillance, selective curation, and censorship



  29. IRC Proceedings: Monday, November 29, 2021

    IRC logs for Monday, November 29, 2021



  30. Links 29/11/2021: NuTyX 21.10.5 and CrossOver 21.1.0

    Links for the day


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