08.15.18
Gemini version available ♊︎Antiquated Patenting Trick: Adding Words Like ‘Apparatus’ to Make Abstract Ideas Look/Sound Like They Pertain to or Contain a ‘Device’
Summary: 35 U.S.C. § 101 (Section 101) still maintains that abstract ideas are not patent-eligible; so applicants and law firms go out of their way to make their ideas seem as though they’re physical
THE examiners at the USPTO have been instructed (as per Section 101/Alice and examination guidelines) not to grant abstract patents, which include software patents. This means that applicants and the law firms whom they pay to ‘game’ the system will go out of their way to rephrase things, making life harder for examiners.
RichmondBizSense‘s patent listings, published only a few hours ago, include “Method and apparatus for context based data analytics” (analysis or analytics using algorithms).
“We certainly hope that examiners are clever enough to spot these tricks; the underlying algorithms do not depend on a device and aren’t strictly tied to any; they can run on any general-purpose computer.”Notice how they titled it; “apparatus” is just the same old trick (like “device”) for making abstract ideas seem physical. Lawyers’ tricks like these fool the examiners. “Device”, at least in the EPO, is the weasel word quite often used to make patents look less “as such” (or “per se” as they phrase it in India). We certainly hope that examiners are clever enough to spot these tricks; the underlying algorithms do not depend on a device and aren’t strictly tied to any; they can run on any general-purpose computer.
Watchtroll’s latest attack on 35 U.S.C. § 101 (this time Jeremy Doerre again, for the second time in a week) shows that patent quality is the real threat to these maximalists/extremists. They dislike justice, love litigation, and Section 101 is therefore a threat to them. Maybe they will just attack SCOTUS again later this week. Judge-bashing has become pretty common at Watchtroll.
Janal Kalis, another patent maximalist, wrote about “apparatus” this week:
The PTAB Affirmed an Examiner’s 101 Rejection of Claims for an Apparatus for Material Analysis: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017010532-07-31-2018-1 …
Maybe the applicant thought that a generic/broad word like “apparatus” would be enough; maximalists like that word, but in this particular case it fooled neither the examiner nor the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR). There are many more like this; it’s quite the norm these days, tackling software patents and other abstract patents at the examination level with help/affirmation from PTAB.
Yesterday Dennis Crouch wrote about PTAB and an examiner rejecting a lousy Facebook patent. He probably (cherry-)picked it because this time, for a change, the Federal Circuit did not fully agree; it reversed and remanded the decision.
“Maybe the applicant thought that a generic/broad word like “apparatus” would be enough; maximalists like that word, but in this particular case it fooled neither the examiner nor the Patent Trial and Appeal Board (PTAB), even without an inter partes review (IPR).”To quote: “Facebook’s U.S. Patent Application No. 13/715,636 claims a method for displaying a set of images after reshuffling or resizing the images. The Examiner rejected Claim 1 (below) as anticipated; and that rejection was affirmed by the Patent Trial and Appeal Board. Now on appeal, the Federal Circuit has reversed and remanded — finding that the USPTO had too loosely interpreted the prior art.
“The claimed image rendering process begins with a sequence of images. Each image is assigned a “first position” within an “array of contiguous image elements” — in other words, the images are put in a particular order. When a user adjusts the position or size of an image — there may be a need for reshuffling of the images into “second positions.” The claimed method includes a requirement that the reshuffled sequence “be contiguous.” — i.e., no gaps in the array.”
How is that not abstract? Never mind prior art, which was the basis for the original rejection… █
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