07.15.18
Posted in America, Europe, Patents at 11:39 pm by Dr. Roy Schestowitz
Hype waves that technical people can’t quite make sense of (so they issue a patent anyway)
Summary: Looking for a quick buck or some low-quality patents (which courts would almost certainly reject), opportunists carry on with their gold rush, aided by buzzwords and hype over pretty meaningless things
Dallas, Houston and other large Texan cities have been trying to attract patent trolls with their software patents that courts in Texas would blindly accept after the USPTO granted them (instituted a monopoly). It was a short-sighted strategy because it’s a deterrence for practising companies, more so after TC Heartland (a decision issued by SCOTUS just over a year ago).
A patent boosters’ site, “Dallas Invents” (or “Dallas Innovates”) being its name, took note of some recent patents. From the summary:
Patents granted include Toyota’s steering wheel that illuminates via touch; AT&T’s electrical switch that generates signals through acoustic inputs; Frito-Lay’s method for removing part of a food product through an “abrasive stream”; and Conduent Business Services’ method to create a classifier that predicts a user’s personality type.
A lot of these are software patents, including the “method to create a classifier that predicts a user’s personality type.” These are, once again, just software patents disguised as something else — something that a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would likely characterise (to reject) as abstract under Section 101 (35 U.S.C. § 101). Is the USPTO asleep at the wheel? Has it not been paying attention to SCOTUS and CAFC (Federal Circuit) decisions? Even District Court cases are nowadays mostly rejecting such patents. Towards the end of the week, for instance, Donald Zuhn covered a District Court case in which one party was “arguing that the claims of the ’831 patent are invalid under 35 U.S.C. § 101 as being directed to patent-ineligible subject matter and for being void of any inventive concept.”
It’s about DNA, not software. From Patent Docs‘s concluding part:
The District Court therefore determined that the ’831 patent is directed to patent-ineligible subject matter.
With respect to the second step of the patent eligibility analysis, Natera argued that the ’831 patent does not contain an inventive concept because the selective enrichment of DNA in the patent involves well-known, routine, and conventional amplification techniques. Illumina responded by arguing that the ’831 patent improves upon prior art techniques by addressing a need for selective enrichment of DNA sequencing for aneuploidy analysis to avoid producing non-target amplification products.
In denying Natera’s motion, however, Judge Illston determined that “at this stage in litigation the factual record is not sufficient for the Court to conclude whether there is an inventive concept.” In particular, the District Court noted that it “cannot determine whether the amplification of ‘at least 100 different non-random polynucleotide sequences’ and the performance of ‘successive rounds of amplification using primers that are directed to sequences within the products of prior amplification reactions’ are routine or conventional” (emphasis in order). In addition, the District Court noted that it “cannot determine whether the claimed selective enrichment leads to a technological improvement.”
Watchtroll has just found an opposite example — one which involves drugs rather than DNA:
AstraZeneca owns the ‘237 and ‘767 Patents, which are directed to pharmaceutical formulations, intranasal administration devices, or aqueous solutions of zolmitriptan, a selective serotonin receptor agonist. The ‘237 and ‘767 Patents are embodied in Zomig® (zolmitriptan), a nasal spray AstraZeneca developed for the treatment of migraines. In 2012, AstraZeneca and Impax entered into an exclusive agreement for the distribution, license, development, and supply of Zomig®. In June 2014, Lannett filed an Abbreviated New Drug Application (ANDA), seeking approval for a generic version of Zomig® Nasal Spray, alleging non-infringement and/or invalidity of the ‘237 and ‘767 Patents.
Obviousness could not be established in this case and it’s considered patent-eligible subject matter. But what about software?
What we’ve been finding more and more of (over the past year or two) is the use or misuse of buzzwords. Richard Kemp from Kemp IT Law, for instance, has just perpetuated this lunacy of calling software patents "cloud" in order to bypass the rules (using a buzzword that typically means server/s). From the article:
The migration to the cloud and transformation to digital now so visibly under way are moving intellectual property (IP) centre stage as all businesses become software companies.
[...]
Waiving LOT membership fees suggests expectations are defensive rather offensive. In this use case, access to a large defensive portfolio like Microsoft’s Azure IP Advantage should also be considered.
He’s promoting Microsoft’s protection racket, “Azure IP Advantage” [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20] as well as LOT Network.
Elsewhere in the news, e.g. these two pages [1, 2] (“IBM Receives Six Blockchain Related Patents In One Week”) we’re seeing patent thug IBM. It is still harvesting bogus software patents by calling them “blockchain”, “AI”, and “cloud”. In this particular example:
IBM is actively working on innovations in the distributed ledger technology (DLT). In the span of a week, the US tech giant was awarded six blockchain-related patents by the United States Patent and Trademark Office (USPTO). Two of the patents were awarded on Thursday, while four patent applications were approved last week.
“Blockchain” has become a catch-all phrase for “database” in some contexts (or simply storage). Servers are “cloud”. Algorithms are “AI”. Watch what Typerium is doing [1, 2]; it’s pursuing bogus software patents that PTAB would likely reject as abstract under Section 101, but with words like “Innovative” and “Blockchain” maybe these applications will be successful. Blockchain has become the hype/buzzword of choice these days [1, 2], especially in the financial sector when one seeks patents on software/business methods.
Software patents on DRM, for example, are something to be condemned, not hailed/celebrated. But what happens when the term “blockchain” is thrown in [1
2]? CoinGeek and other cryptocurrency-centric sites were absolutely giddy about it [1, 2, 3]. nChain pretends that it is “Open Source”, but actually it’s a force for bogus software patents (even in Europe or the EPO). No such thing can ever help Free/Open Source software and because the patents pertain to digital rights management (DRM) it couldn’t get any worse. “nChain,” one item says, “the global leader in research and development of blockchain technologies, is pleased to announce issuance of another three patents by the European Patent Office. These three patents, issued on July 11, 2018, are all methods to enforce digital rights through the use of blockchain technology.”
Watch the EPO falling for buzzwords:
European Patent (EP) No. 3295349, entitled “A method and system for verifying integrity of a digital asset using a distributed hash table and a peer-to-peer distributed ledger,” describes a system that uses a standard BCH transaction, with additional metadata, to reference an entry within an external distributed hash table (DHT). To show the integrity of a digital asset, its signatures must align with the signatures on the DHT as well as the signature on the blockchain transaction itself.
The second patent, EP3295362, is for “A method and system for verifying ownership of a digital asset using a distributed hash table and a peer-to-peer distributed ledger.” Just as its name suggests, this invention adds another set of cryptographic operations based on the first patent’s technique to validate a digital asset’s current owner.
Finally, there’s EP 3295350. This invention, titled “A method and system for verifying ownership of a digital asset using a distributed hash table and a peer-to-peer distributed ledger,” is described as a logical extension of the technique in EP 3295362, which allows a computer software to check the user’s right to execute it before the software is launched.
Why are these patents being granted? That’s software! Here’s more from Bitcoin News:
The blockchain technologies research and development firm, Nchain, has acquired three new patents that have been issued by the European Patent Office. The company’s latest intellectual property invented by Nchain’s chief scientist, Dr. Craig Wright, cover “digital rights management using blockchain.”
nChain, as we noted here before, seems to be doing nothing but harvesting software patents (even at the EPO where it’s not allowed). It’s even buying patents. Lawsuits to come? It these patents ever get tested in courts (in Europe or elsewhere), expect them to perish. But at what cost to innocent defendants? █
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Posted in America, EFF, Patents at 9:52 pm by Dr. Roy Schestowitz
Things one can accomplish with pen and paper just aren’t patent-eligible anymore
Summary: Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) come to the rescue when patently-bogus patents are used, covering totally abstract concepts (like software patents do); IPRs continue to increase in number and opponents of PTAB, who conveniently cherry-pick Supreme Court (SCOTUS) decisions, can’t quite stop that
THE encouraging developments at the USPTO mostly revolve around invalidations. And why? Because many patents had been granted in error over the decades, all this (or most of this) prior to AIA, whereupon many of these were taken away. It’s no secret that the EFF speaks out in support of PTAB, for instance, which is why the anti-PTAB lobby hates the EFF so viscerally. PTAB basically helps raise patent quality in the US. PTAB is being regularly defended by the EFF and also by the R Street Institute and CCIA, as the EFF noted a few days ago. To quote:
It’s already much too difficult to invalidate bad patents—the kind that never should have been issued in the first place. Now, unfortunately, the Patent Office has proposed regulation changes that will make it even harder. That’s the wrong path to take. This week, EFF submitted comments [PDF] opposing the Patent Office’s proposal.
Congress created some new kinds of Patent Office proceedings as part of the America Invents Act (AIA) of 2011. That was done with the goal of improving patent quality by giving third parties the opportunity to challenge patents at the Patent Trial and Appeal Board, or PTAB. EFF used one of these proceedings, known as inter partes review, to successfully challenge a patent that had been used to sue podcasters.
Congress didn’t explicitly say how these judges should interpret patent claims in AIA proceedings. But the Patent Office, until recently, read the statute as EFF still does: it requires the office to interpret patent claims in PTAB challenges the same way it does in all other proceedings. That approach requires giving the words of a patent claim their broadest reasonable interpretation (BRI). That’s different than the approach used in federal courts, which apply a standard that can produce a claim of narrower scope.
Using the BRI approach in AIA proceedings makes sense. Critically, it ensures the Patent Office reviews a wide pool of prior art (publications and products that pre-date the patent application). If the patent owner thinks this pool is too broad, it can amend claims to narrow their scope and avoid invalidating prior art. Requiring patent owners to amend their claims to avoid invalidating prior art encourages innovation and deters baseless litigation by giving the public clearer notice about what the patent does and does not claim.
[...]
We hope the Patent Office will reconsider its proposal, after considering our comments, as well as those submitted by the R Street Institute and CCIA, a technology trade group. Administrative judges must remain empowered to weed out those patents that should never have issued in the first place.
We regularly take note of the good work of the EFF (recent examples [1, 2]). It wasn’t always the case because the strategy/policy of the EFF used to be a tad different when it comes to software patents. One reader sent us the pointer to an article titled “No, you can’t patent the ability to pause a lesson recording, EFF says” (relating to the original from the EFF, which we mentioned before). Here’s their latest target:
The Electronic Frontier Foundation has stepped up to represent a small, independent online language teacher who has been threatened with a lawsuit by a British publisher that claims the teacher is infringing an American patent issued back in 2000 for a particular audio-based teaching technique.
What’s the secret sauce? Amazingly, the use of a pause button to temporarily stop the lesson.
Well, software patents are a stain on the patent system. The Office ought to stop granting these, as per Alice. But will it? At the moment many rely on courts (or PTAB) to do this. This is why courts have been coming under many attacks from patent maximalists. It’s pretty ugly to watch.
With borderline abuse, patent maximalists still try (almost every day) to discourage me from writing about patents. Little do they know that they only embolden me; if it upsets them, it means there’s impact. They just don’t like to see the “other side” expressing its views, hence the attacks on the EFF as well.
Dealing with two SCOTUS decisions regarding PTAB, this upcoming webinar has been titled “Protecting and Licensing University Patents in a Post-Oil States and SAS World” (they allude to immunity universities typically enjoy).
Michael Loney has meanwhile written about the latter decision, under a headline which later extended from “SAS appeal – how the Federal Circuit has interpreted PTAB cases” to “SAS appeal – how the Federal Circuit has interpreted PTAB cases since Supreme Court ruling” (why this revision? Clarity?).
We recently mentioned how they obsess over SAS rather than Oil States, the far more important decision.
All this cherry-picking of SCOTUS cases is quite revealing, as was yesterday’s promotion of a Practising Law Institute (PLI) webcast on WesternGeco. Loney’s colleague, Sanjana Kapila, is trying to figure out what Trump’s SCOTUS ‘coup’ means for patents, especially knowing what Gorsuch said about SAS and Oil States. Well, initially an "unknown" on the subject of patents, Gorsuch has thus far been a total disaster. As many feared, he now parrots talking points from think tanks funded by the Koch Brothers. To quote Kapila’s article:
The US Supreme Court ruled on three intellectual property cases this term, all concerning patents. This was far fewer than the eight IP cases in the previous term.
Loney is meanwhile taking note of key PTAB decisions, remarking that “PTAB designates five informative decisions” and to quote:
The Patent Trial and Appeal Board has designated five decisions as informative, two ex parte review and three inter partes review decisions
Dennis Crouch also listed these cases. He wrote: “The USPTO has recently designated five PTAB decisions as “informative.” (I have also included the recent Western Digital decision as well).”
On the 12th of July Loney revealed that filings/petitions (IPRs) were on the “up”, still. That means more patents being scrutinised. Here are the numbers:
June included an increase in Patent Trial and Appeal Board petition filing, two PTAB-related bills being introduced in Congress and the first reversal of a PGR final written decision
The first half of 2018 ended with 817 petitions filed at the Patent Trial and Appeal Board, up from 766 in the second half of 2017.
The Federal Circuit weighs in occasionally. Here’s a new example of “CBM Decision Vacated: the patent does not qualify as a covered business method.”
To quote Crouch:
Apple and Google both challenged ContentGuard’s U.S. Patent 7,774,280 under the Covered Business Method Post Grant Review proceedings. The challenges raised eligibility, novelty, and obviousness challenges to several of the claims, but the Director (acting via the PTAB) only partially instituted: instituting only on novelty and obviousness, and only to three of the claims. In the end, the PTAB found those claims obvious, but also allowed the patentee to add Claim 37 as a substitute for Claim 1 and found the new claim valid (not proven invalid).
On appeal, the Federal Circuit ruled the entire event a nullity — finding that the patent does not qualify as a covered business method. See Versata Dev. Grp., Inc. v. SAP Am., Inc., 793 F.3d 1306, 1323 (Fed. Cir. 2015) and Unwired Planet, LLC v. Google Inc., 841 F.3d 1376, 1379 (Fed. Cir. 2016). A key case on point is also Secure Axcess, LLC v. PNC Bank National Ass’n, 848 F.3d 1370, 1381 (Fed. Cir. 2017). However, that case was vacated as moot by the Supreme Court in PNC Bank Nat. Ass’n v. Secure Axcess, LLC, 138 S. Ct. 1982 (2018).
The “Transitional Program for Covered Business Method Patents” is not codified within the United States Code (35 U.S.C. ___) because it is only a temporary program that sunsets in September 2020. Thus, the CBM program is generally cited as Section 18 of the Leahy-Smith America Invents Act.
Factual errors in Patently-O (not for the first time, either) were later noted by Patently-O itself. “On July 11,” Crouch said, “I wrote about the recent Federal Circuit decision in Apple v. ContentGuard. My post erroneously stated that the court found that the patent does not qualify as a “covered business method” patent. The court did not take that bold of a step of a reversal. Rather, the court vacated the PTAB’s finding that was based upon an improper legal standard and remanded for a reconsideration.”
This was mentioned some hours ago by Watchtroll.
Google too is involved in this fight because it is also affected. And after all, Google too has challenged ContentGuard’s patent number 7,774,280. Google is just harvesting patents nowadays (new example from the news); it is patenting software, relying on patents that restrict Public Domain material/knowledge and occasionally Google sues as well. One day PTAB will turn against Google itself, rendering its own patents invalid as well. █
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Posted in America, Asia, Patents at 8:53 pm by Dr. Roy Schestowitz
Now producing a puff piece every week
Summary: Invitation to trolls in China, courtesy of the patent trolls’ lobby called “IAM”; this shows no signs of stopping and has become rather blatant
THE legal terrain in the US has become trolls-hostile, as we last noted yesterday. Having run short of opportunities in the gradually-reformed US (especially the courts, not the USPTO), some patent trolls now look at China for litigation opportunities. That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).
“That includes iPEL, an unethical troll which calls itself “ethical” and even trademarked this term (“ethical NPE”).”Joff Wild and his colleagues/writers/lobbying team have been doing puff pieces for iPEL, e.g. [1, 2]; the matter of fact is that almost nobody else writes about it and they speak directly to the troll, issuing puff pieces (and threats) every week or so. Yesterday’s latest puff piece was about “game-changing patent case” and by “game” they mean “trolling”. To quote:
After all, $100 million of damages from one company indicates that there is considerable further upside in the wider industry or sector the patents cover. To hand over the ability to tap that amount of revenue for anything other than a huge sum of money would be extremely careless – to say the least. From what I know of the likes of Huawei, ZTE and others that iPEL has bought from, such as Panasonic, it’s hard to see them doing such a thing.
Although Yates has been a long-time player in the US monetisation [trolling] market – and filed over 500 suits during 2015 and 2016, before falling foul of Judge Gilstrap in the Eastern District of Texas last year – he does not seem to have done much work in China up to now. It is likely, though, that he has done plenty of research and spoken to a lot of people. They would surely have told him that discretion is the better part of valour in a jurisdiction that, although it generally treats plaintiffs well, is increasingly complex and political.
Yeah, trolls are “increasingly complex and political.” So are extortion rackets.
We suppose many of our readers already know what IAM stands for (e.g. lies for Battistelli and EPO revisionism). But one must understand that these people are shown in “news” feeds and apparently pay other sites to reprint this tosh.
“We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain.”Patent Docs is another mouthpiece of patent maximalists’ agenda. Webinars from the Intellectual Property Owners Association (IPO) and other proponents of software patents are still being advertised there this weekend (coming soon). It’s quite fitting that patent lawyers nowadays use the term “unclean hands” (brought up a lot recently). Webinars like this upcoming one deal with questions such as: “How will Supplemental Examination effect both unclean hands and inequitiable conduct?”
We cannot stress strongly enough that media covering patent issues is in an appalling state. It’s almost entirely PR; there’s barely any investigative, critical journalism in this domain. In the case of IAM, it’s borderline lobbying, pure and simple. █
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Posted in Europe, Law, Patents at 11:03 am by Dr. Roy Schestowitz
Summary: The ILO Administrative Tribunal (ILO-AT) is advertised by the EPO‘s management as access to justice, but it’s still being undermined quite severely to the detriment of aggrieved staff
THE NEW President of the EPO, António Campinos, is still not complying with ILO-AT judgments. It’s problematic for a lot of reasons and sources of ours already give up on him (or concede hope that he will fix things that matter). Actions are needed; it has already been half a month.
Earlier this year we saw links to some tweets of somebody called Anette Koch, who came out in Twitter, revealing grievances she had experienced at the EPO. Just before the weekend we saw more links (or retweets) from EPO-connected accounts to documents that we decided to publish yesterday. These documents, or rather a two-page letter (E-mail/s), confirmed our suspicions that when it comes to justice Campinos and Battistelli might be indistinguishable.
“These documents, or rather a two-page letter (E-mail/s), confirmed our suspicions that when it comes to justice Campinos and Battistelli might be indistinguishable.”So we attempted to contact the person in question. It wasn’t hard because the E-mail appeared in the above documents. We now have a better understanding of what’s going on and would like to share what the EPO under Campinos is doing.
“The EPO attempts to jeopardize three of my cases with the Tribunal by arbitrarily re-starting them in internal appeal and inviting me for comments,” Koch responded to my E-mail, “[so] of course I will comment to the Tribunal only. Please note that the Tribunal did not refer them back to the EPO, i.e. the EPO acts on its own initiative.”
Remittance before judgments can even be reached? That’s odd. How many more people might this be done to? It wouldn’t be so shocking if the EPO, under instructions from high-level management (maybe Campinos himself or HR itself), is just mass-mailing this to a lot of complainants.
“I am sick and tired of this type of bullying,” Koch told me, “I have pain in my stomach and in my right wrist currently, so I have to be short.”
“Remittance before judgments can even be reached?”It doesn’t look as though the EPO changes in any concrete way under Campinos. I gave him a chance, I really did; I wanted to think that things were going to improve at least in the sense that the social climate might change. But they’re still panicking. Staff still suffers. SUEPO representatives, victims of union-busting efforts, are still in limbo.
It’s worth noting that the document (or documents, a few E-mails) was produced well after Campinos had taken over and, if so and considering the circumstances, who is most culpable (or to blame) here? The legal department, HR, or someone else?
Campinos has been President since the first of July. The documents (E-mails) are dated 9th of July and 10th of July, respectively. While the decision mentioned could still have been taken by Mr. Battistelli, the new President should normally have been informed. He is welcome to stop this.
“While the decision mentioned could still have been taken by Mr Battistelli, the new President should normally have been informed. He is welcome to stop this.”The crucial legal points are: (i) a lower judicial instance cannot re-start a case under appeal on its own initiative (notwithstanding the non-judicial character of the EPO which is a party to these cases), (ii) in the E-mails the IAC clearly threatens to adopt the current procedural rules (it points to them), i.e. all its members can be nominated by the President only or determined by lots. To adopt the current rules contravenes the principle of non-retroactivity, obliging the EPO to follow the Service Regulations at the time of filing internal appeals at which part of IAC members were still to be nominated by the CSC (where’s the IAC’s “independence” otherwise?).
“The effect of such E-mails on my health is significant,” Koch told me, “i.e. pain in my stomach, neck, wrist and elbow.”
It’s bad enough that the EPO’s poor facilities have already caused many disabilities at the EPO (we wrote about it before). It’s even worse that those people get ‘discarded’ once the EPO ‘breaks’ them and these people are then denied access to justice. What kind of employer is this? Persistent rumours suggest that the EPO isn’t even hiring anymore; it only pretends to, i.e. it’s wasting people’s time and making them nervous without any prospects of a job.
“This further reaffirms SUEPO’s allegation (from a couple of weeks back) that ILO-AT “remains very much an employer’s court” (not employees’) because it’s often doing whatever EPO management wants it to do.”Remarking on the above, Koch replied to our query by asserting that “the main aim of all this is of course to prevent treatment of my cases in substance by the Tribunal, by having them referred back to the IAC, i.e by delay. This would be another catastrophe, and I have to do everything I still can to prevent this [...] it’s about the EPO’s and partly the ILOAT’s way of proceeding, not about me in person [...] Yet it is new (in my cases) and utterly absurd that the IAC simply restarts cases in internal appeal on its own motion, even without the Tribunal referring them back to the IAC (at least SUEPO did not report such cases yet).”
This further reaffirms SUEPO’s allegation (from a couple of weeks back) that ILO-AT “remains very much an employer’s court” (not employees’) because it’s often doing whatever EPO management wants it to do. It doesn’t really feel impartial and decisions get delayed at the request of the EPO. █
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Posted in America, Courtroom, Patents at 1:15 am by Dr. Roy Schestowitz
Related: Michael Frakes and Melissa Wasserman Complain About Low Patent Quality While Watchtroll Lobbies to Lower It Further
These cost $132,000 each about 60 years ago (more than $3 million by today’s money)
Summary: Some profit from selling weapons, whereas others profit from patent grants and litigation; what’s really needed right now is patent sanity and adherence to the public interest as well as the law itself, e.g. Supreme Court (SCOTUS) decisions
THE SCOTUS ruling on Alice more than 4 years ago ought to have sufficed. It ought to have stopped software patent grants in the US. Sadly, however, parties often need to appeal to the Federal Circuit (very expensive) in order for such patents to be intercepted; sometimes a Patent Trial and Appeal Board (PTAB) inter partes review (IPR) would suffice, but not always. Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB. For small businesses in particular, PTAB is all they can afford. Embargoes to them may mean life or death. They may declare bankruptcy overnight.
“Then there are overzealous courts like the tribunal of ITC, which impose sanctions even in defiance of PTAB.”In spite of Mayo, another SCOTUS decision that shaped 35 U.S.C. § 101, the USPTO is still granting patents on life itself (the EPO increasingly does this too, in arrogant defiance of the EPC). Here is a press release that is only a few days old:
Inscripta Granted Patents for CRISPR Gene-Editing Systems
Inscripta, a leading gene-editing technology company, today announced two significant milestones. First, the USPTO granted Inscripta its first patent covering systems using MAD7, the company’s first free CRISPR enzyme, as well as patent coverage for systems using another MADzyme, MAD2. Second, Inscripta released new data run by external partners showing MAD7 can edit mammalian cells.
“Today marks a major step forward in the gene-editing revolution we started seven months ago when we released our own, unique CRISPR enzyme (MAD7),” said Kevin Ness, CEO of Inscripta. “We and our partners have shown that MAD7 is an effective tool in editing microbial and mammalian cells. All researchers, both academics and industrial scientists alike, can use MAD7 confidently, and Inscripta is committed to providing a license to its related patents for customers to perform free research and development using the enzyme.”
Why was this granted? Need someone petition PTAB now (IPR)? Does someone have the financial incentive to do so? We sure hope so. Otherwise we need to wait for some court battle, knowing that Inscripta might prey on small companies that simply cannot afford court battles (and would rather shell out ‘protection money’). This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation. The US does not, in principle, allow CRISPR monopolies. There are SCOTUS precedents to that effect.
“This kind of patent would do no good; if facilitates nothing except shakedown (a form of extortion) or patently frivolous litigation.”Cellspin Soft, Inc. v Fitbit, a case that we mentioned days ago in this post, is now being covered by Michael Borella (McDonnell Boehnen Hulbert & Berghoff LLP) in Patent Docs (reposted here, maybe for a fee so as to appear more widely). Here’s the part relevant to 35 U.S.C. § 101 although the more interesting angle is the possibility that the plaintiff will get punished for frivolous litigation. Quoting Borella:
Cellspin sued Fitbit and thirteen other defendants in the Northern District of California alleging infringement of U.S. Patent Nos. 8,738,794, 8,892,752, 9,749,847, and 9,258,698. The defendants filed a motion to dismiss, alleging invalidity of the patents under 35 U.S.C. § 101.
As we said some days ago (for the second time), we hope this case can become a deterrent against frivolous litigation in the US, but we can’t quite count on it. Many courts, especially the lower ones, don’t pursue fact-finding. Instead they let juries decide. It’s pretty silly to do patent trials by jury, for reasons we’ve explained many times before (many in the jury are incapable of understanding the technical details inside patent claims), yet here we are in Mass Engineered Design, Inc. v Planar Systems, Inc. — the case which now potentially deals with treble ‘damages’ over alleged infringement. As Docket Navigator put it yesterday:
The court granted plaintiff’s motion in limine under FRE 403 to preclude defendant from telling the jury that damages could be enhanced or trebled at a willfulness retrial and rejected defendant’s argument that its supplier’s indemnification agreement should similarly be excluded.
What does the jury know? These aren’t professionals in the said field? It’s understandable that juries can decide cases like homicide or drug sale/use, but patents? Seriously?
“If the ultimate goal is justice rather than profit, then the status quo is “unfit for purpose” (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms.”In another new development, in Shire LLC et al v Abhai LLC, “[t]The court granted in part plaintiffs’ motion for discovery sanctions and sanctioned defendant $1.5 million after defendant disclosed corrected stability dissolution testing data during a bench trial,” according to this new Docket Report.
The way things stand at the moment — and we shall elaborate on that later in the week — patent justice isn’t easy to find in the US. The law is still dominated by law firms (they write the law by lobbying/lobbyists) and patent examiners are better rewarded for granting a lot of patents rather than rejecting most. If the ultimate goal is justice rather than profit, then the status quo is “unfit for purpose” (i.e. not good enough) and always favours deep-pocketed corporations as well as law firms. The latter want eternal war. █
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Posted in Patents at 12:12 am by Dr. Roy Schestowitz
They have their media cheerleaders, too
Summary: The companies seeking to complement their business (or make up for their demise) using patents are still suing rivals while calling that litigation “research and development” (the same old euphemism)
BOLSTERED by patents from the EPO and USPTO (BT had also lobbied India to allow its dubious patents on software about a decade ago), BT continued with its patent aggression some days ago. It’s a regrettable strategy which isn’t entirely new at all [1, 2] (we have been covering examples for half a decade).
As WIPR put it last week, BT nowadays chooses the popular District of Delaware for litigation:
Telecommunications company BT has accused cybersecurity software developer Fortinet of infringing five patents relating to network security.
BT filed its complaint at the US District Court for the District of Delaware on Tuesday, July 10.
According to the lawsuit, BT is the oldest telecommunications company in the world. It annually spends more than £500 million ($660.7 million) on research and development, which BT said has led to “numerous patents” being granted.
They drop the talking point about “research and development” whenever they seek to euphemise “patent monopolies”. BT has a long and colourful history of monopoly abuse, not only in the UK but also abroad (colonialism contributed to that).
Then comes IAM’s Richard Lloyd. Being a lobbyist for patent trolls and aggressors, his headline says this act of aggression “shows how cyber security is becoming big patent business” (extortion, more so than “business”).
“They drop the talking point about “research and development” whenever they seek to euphemise “patent monopolies”.”BT, according to him “has launched a lawsuit in US district court accusing a Silicon Valley based cyber security company of infringing five of its patents. According to the complaint, which was filed earlier this week in Delaware, BT contacted Fortinet in late 2014 and claimed that it infringed on two of the patents-in-suit. Despite writing to the company on three separate occasions through 2015 and again in early 2016, Fortinet did not respond to any communication until February 2016 via its outside counsel. According the court filing, it did not provide any meaningful explanation for why its products did not infringe the pair of patents.”
So this goes back almost half a decade ago (2014), i.e. the time we first covered BT’s patent assaults on companies which do Free/libre software, including SIP, Android and so on. Will we see BT reduced to drone strikes (assassinations) and ‘trolling’ (e.g. passing patents to patent trolls) as means of “doing business”? Hopefully not. But it seems to be gravitating in that direction.
“Will we see BT reduced to drone strikes (assassinations) and ‘trolling’ (e.g. passing patents to patent trolls) as means of “doing business”?”We have meanwhile learned that Sonos, a patent aggressor which hired former senior IBM and Microsoft patents executive Tanya Moore (she left earlier this year), is boasting about patent aggression again, claiming revenue derived from lawsuits. It says that “Sonos owns 630 issued patents, and 570 applications. It invests heavily in R&D.” R&D (“research and development”, as above) is just a euphemism for patents; further down it says “Innovative Business Model With Patents”. Sonos sued rivals, e.g. in 2014.
When your business is patents more than actual products (example from last week’s news) maybe you’re not really producing a compelling product and instead preying on other people’s work/sales. █
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