12.19.18
Posted in Europe, Patents at 11:17 pm by Dr. Roy Schestowitz
The year 2018 marked the end of Battistelli’s 8-year reign, but his legacy moved and still moves ahead (full steam)
“It`s not the voting that`s democracy; it`s the counting.”
–Tom Stoppard
Summary: The subject of patent quality is completely off the table and the rights of staff are still being violated, with representatives being gagged in the process; one primary/foremost concern is that regulatory powers that could in theory ensure adherence to the EPC are no longer there
THIS year will soon end and we’re witnessing an improvement in docility among the media, which seems unwilling or incapable of seeing and reporting about the European Patent Office (EPO). Learned helplessness or a culture of fear suppressed further protests and strikes; staff cuts make people a lot more reluctant to speak out. This means that things can continue to exacerbate without much resistance from the media and the staff. It’s a communications vacuum and it in no way represents an improrevment; no more than lack of open dissent in China represents an improvement, except in terms of repression. It’s not about reputation building but about gagging one’s critics*. By critics we mean people who simply point out corruption, which is apparently the biggest ‘crime’ one can commit at the EPO and WIPO.
“The EPO focuses on speed, not quality, as usual.”The EPO keeps trying to present itself as more open and receptive to feedback (e.g. meeting with some staff and law firms). But in many ways, as we explained earlier this year, the Office becomes more opaque or secretive.
As recently as Friday they asked for feeback [sic] (fee back?): “We look forward to receiving your feeback [sic] on the possible introduction of an option to postpone substantive examination: https://bit.ly/2Blsb6E ”
The anonymous “Kluwer Patent blogger”wrote about this the following day again:
The European Patent Office has opened an online consultation on the possibility of allowing more flexibility in the timing of the examination process by offering means to postpone the examination of European patent applications.
The EPO focuses on speed, not quality, as usual. It distributes software patents; it gives patents (monopolies) on computer vision, too (algorithms). It just uses terms like "SDV" patents, making them seem like patents on “cars” (physical). Last week it wrote: “Europe and the USA leading the way in self-driving vehicle innovation” (they meant patents, which are not synonymous with innovation as measured by one patent office). There’s also that "Blockchain" patents hype; Knowing that the EPO grants such abstract software patents (not valid in court), Samsung now wants one and sites that are focused on digital currencies say:
The South Korean Tech giant, Samsung, has filed for a patent for its upcoming Samsung Blockchain Phone technology. The filing was submitted earlier in the week to the European Patent Office (EPO) in the German City of Munich.
The entry of Samsung into the Blockchain space marks the beginning of the globalization of Blockchain technology that is currently drawing mixed reactions following the Crypto markets bear cycle that has been ongoing from November 24th. This is because Blockchain technology and Cryptocurrencies are deemed to be one and the same in the contemporary world as Cryptos are native to Distributed Ledger Technology platforms.
So even the EPO is being approached/targeted with such applications now. It’s gererally viewed as a software patents-friendly office.
Patent Docs‘ weekend ads carried on and this time they included this upcoming ‘webinar’, relying on lack of court challenges (it’s expensive) by which to invalidate software patents in Europe. Strafford promotes the act of pursuing bogus software patents at the EPO while encouraging the framing of algorithms as “AI” (the usual nonsense) — something that António Campinos has been ever so eager to do.
Strafford will be offering a webinar entitled “New EU Guidelines for Patenting AI and Machine Learning Technologies: Comparison With U.S. Approach — Navigating EPO and USPTO Rules to Maximize Patent Protection” on January 8, 2019 from 1:00 to 2:30 pm (EST).
Strafford will ‘debate’ “Maximizing Patent Prosecution Opportunities in Europe”; words like “Maximizing”, “Prosecution” and “Opportunities” sound rather promising to the target audience. How about “Blackmail” or “Trolling” instead?
From the summary/outline:
Strafford will be offering a webinar entitled “Maximizing Patent Prosecution Opportunities in Europe: Tactics for Counsel When Drafting U.S.-Origin Applications — Navigating Differing USPTO and EPO Legal Standards While Maintaining U.S. Patent Strategy” on January 10, 2019 from 1:00 to 2:30 pm (EST). Rebecca M. McNeill of McNeill Baur and Jens Viktor Nørgaard of HØIBERG will guide patent counsel in drafting U.S.-origin patent applications to maximize prosecution opportunities in both the U.S. and Europe, and offer best practices for U.S. patent application drafters to protect inventions in Europe without sacrificing U.S. strategy.
This is all about suing someone, not defending against a lawsuit. When extortion of rivals using dubious/bogus patents is publicly celebrated by opportunists who charge about $300/hour those who are already poor will suffer the most. █
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* A lot of the same managers are still in charge, including one whose background brought endless disgrace to the Office. His ‘tenure’ (term) ends shortly. He is being replaced. We will see what we can do to tactfully report the issue when it’s back in court after half a decade of EPO immunity. Željko Topić, the person in question, could be spotted in Banja Luka in October. As per this page: (offline at the moment, seemingly due to server downtime, but there’s Google cache)
Banja Luka, October 30, 2018 – Seminar entitled “Technology Transfer and Impact of Intellectual Property Rights to National Economy” was held on October 30, 2018 at the premises of the Rectorate of the University of Banja Luka (UNIBL).
The organizer of this seminar was the Entrepreneurship and Technology Transfer Center of the University of Banja Luka, in cooperation with the Institute for Intellectual Property of Bosnia and Herzegovina and the European Patent Office (EPO).
Introductory speeches were held by Josip Merdžo, director of the Institute for Intellectual Property of Bosnia and Herzegovina, representatives of the Entrepreneurship and Technology Transfer Center and vice-president of EPO Željko Topić, who also held a lecture within the first theme of the seminar titled “EPO and European Patent System”. The seminar was attended by Prof. Dr. Strain Posavljak, vice-rector for teaching and student affairs at UNIBL.
“A report on the seminar can also be found on the Web site of the University of Banja Luka,” a source told us. Whether he stays in Munich or returns to Zagreb matters a lot to some people because of upcoming trials. How much longer can this man escape justice? It’s a major liability to his country’s reputation, not just the EPO’s reputation.
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Posted in Europe, Law, Patents at 10:04 pm by Dr. Roy Schestowitz
Plants, algorithms and other patent-ineligible things should never become monopolies
“The European Patent Office is an executive organisation, it deals especially with patent applicants, as such, its view of the world may be biased. As an executive organisation, its interpretative powers are very limited. The European Patent Convention excludes computer programs, it is outside the EPO’s power to change this.”
–Ante Wessels, FFII
Summary: Debates about the EPO’s inability to respect the law and to maintain modest/reasonable patent quality are a reminder of why the UPC is, in effect, a dead end
THE staff of the European Patent Office (EPO), especially staff which deals with examination, can’t be very proud of the devaluation of European Patents. People whose job performance is assessed by a bunch of numbers/figures like patent grants or “products” may feel victorious, but to turn the EPO into another USPTO would be a low goal; it would even be an own goal.
“The EPO does a very fine job discrediting itself if it grants such patents, finishing what’s left of its already-harmed reputation and especially the credibility of European Patents.”The perils associated with quality of European Patents were brought up again early in December. A surprising new decision represented a threat to farmers and to the EPO's own reputation. Barbara Rigby from Dehns (Team UPC) more recently wrote about that awful decision to grant patents against the EU and against the EPC as if the EPO is above the law and can just make up the rules.
“In a surprising turn of events,” she said, “on 5 December 2018 a Technical Board of Appeal of the European Patent Office (EPO) decided that plants which are the products of essentially biological processes are not excluded from patentability. The decision (T 1063/18) is a twist in a long-running saga, but may well not be the final word on the matter.”
The EPO does a very fine job discrediting itself if it grants such patents, finishing what’s left of its already-harmed reputation and especially the credibility of European Patents.
“It is interesting,” Rigby added, “that the Technical Board of Appeal did not consider it necessary to refer this matter to the Enlarged Board of Appeal. However, the patentability of plants is a controversial topic and many stakeholders on both sides of the debate hold strong views. It would therefore perhaps be premature to think that decision T1063/18 signals the end of this saga. A future referral to the Enlarged Board of Appeal (in connection with a separate appeal) is not inconceivable, so for now, legal uncertainty remains. It remains to be seen if and when the EPO amends Rule 28(2) EPC. We will provide updates as and when new developments arise.”
This may very well become a new/latest major scandal, maybe not among patent law firms. David Brown (Haseltine Lake LLP) wrote about this awful decision: “It is reported that, at a hearing on Wednesday 5 December 2018, the EPO Technical Board of Appeal 3.3.04 in the case T1063/18 (Syngenta’s Pepper Plant Application No. EP-A-2753168) decided that Rule 28(2) of the European Patent Convention (EPC) is incompatible…”
We have already started to see coverage not from law firms. The Courier, for example, writing under the “Farming” section, went with the headline “Patent ruling puts plant variety breeding at risk” and then explained further:
EU farming leaders have warned that plant breeders could lose vital access to natural genetic resources as a result of a highly contentious ruling by the European Patent Office (EPO).
Copa-Cogeca, who represent Europe’s farmers and farm cooperatives, have expressed “shock” over a recent EPO ruling relating to new pepper plants, which they say could make the breeding of new plant varieties from ”natural traits” subject to patents.
This is in contrast to the current exclusion of “natural traits” from the patent process, an approach which has left the protection of new plant varieties to be governed by a licensing system, which Copa-Cogeca argues is working perfectly well.
Thor Kofoed, chairman of Copa-Cogeca’s Working Party on Seeds said: “We don’t need a patent system for plant breeding in Europe as we already have Community Plant Variety Rights, which has been the most efficient system worldwide for the past 50 years.”
Staying with plant variety licensing is also the preferred choice of Professor Colin Campbell, chief executive of the James Hutton Institute, home of countless plant variety developments over the years.
“The institute has produced many successful new crop varieties via conventional breeding methods and are famous for their Glen raspberry and Ben blackcurrant varieties,” said Prof. Campbell.
This is the kind of thing that harms condfidence in the EPO’s ability to decide on patent scope or patent validity; it’s not even complying with the EU’s own rules. They’re not even in agreement on this very fundamental question which is patents on seeds.
Just before the weekend a comment was posted in IP Kat to say:
You consider that “The EPO is being entrusted with the Unitary Patent”. This is not completely correct. It is entrusted with keeping a register of UP and to collect the annual fees for UP. It is difficult to see in those two points the full responsibility of the EPO for UP.
Getting to decide which are and which aren’t valid patents is a very big deal, including opposition proceedings. That gives the EPO enormous power over patent scope — a power it has repeatedly and patently misused.
On the other hand, you put the finger on one of the big drawbacks when it comes to the UPC.
What if, in matter of validity, the case law of the UPC will differ with the case law of the BA and more with that of the EBA. This is a fundamental uncertainty, and I would say flaw of the UPC system. At least between the EFTA court and the CJEU there has been an agreement to exchange information. Between the UPC and the EBA/BA nope. This must have a reason. May be the aim behind this is the end of the EBA/BA?
On the other hand, why should 10 states, some of them having also a strong economic holding, but outside the EU, accept judgements of a court only acting within the EU?
These courts aren’t even discussing the case in the defendants’ language/s. But there are even greater and more blatant infringements — more of which were discussed here before.
There would have been one solution that is for the UPC only to deal with infringement, and let the EBA/BA decide on validity. A kind of general bifurcation to use a naughty word.
Given the abuse of power by the Office, which attacked the appeal boards time after time, and considering the Office’s violation of the EPC (e.g. on patent scope), this is just unacceptable. If the Office President gets to decide what is and isn’t valid, even when national courts do not agree, that’s an incredible amount of leverage to exercise over the decisions of the court.
This would mean that the opposition period would have to be extended to the life time of the patent, and not merely limited to 9 months. After all, a proprietor may amend its EP during its whole life, thus why limit the possibility to challenge the patent centrally only for 9 months after grant?
This could have been good for unification of law within Europe, and would have avoided any clash of case law. This solution would certainly not be to the liking of all the lobbies who absolutely wanted the UPC, for whatever reason.
In this system, validity could be assessed in a consistent way by a court systematically composed of technical judges, and not just by technical judges which are all in a pool, and can be called or not at the discretion of the judges sitting in the local or regional courts of first instance of the UPC.
When it comes to infringement, then the UPC could act, but only on this point.
By deciding both on infringement and validity, clashes are necessarily programmed. Just look at the way added subject-matter is dealt with at the EPO. It is not a secret that the way added matter is looked at by the BA/EBA, is very strict, and for good reasons, but to the dislike of plenty of users. By doing so, they actually forget that the added-matter and novelty are the two sides of the same coin: what you lose on on side you gain on the other.
The way things stand at present, validity decisions are improperly dealt with, e.g. with growing burden on challengers because the Office tries to mask the decline in patent quality. Having the EPO at any phase/part of the legal process is therefore a problem.
Let’s take the example of the German Federal Court (BGH): if an independent claim comprises a feature extending over the original disclosure, the unallowable feature is merely to be disregarded when assessing patentability, cf. X ZR 161/12 (Wundbehandlungsvorrichtung=Wound treatment device). This means that the application is refused and the patent revoked.
Before the EPO G 1/93 (the inescapable trap) is valid. When it comes to added subject-matter during examination, then the position of the BGH is the same as the BA/EBA. See BGH X ZB 5/16 (Phosphatidylcholine).
Imagine we end up with a similar situation when it comes to the UPC. Is such a difference in legal approach, on actually the same legal text (Art 100-Art 138 EPC) in the interest of European Industry, and especially SMEs? I have some doubts.
The whole UPC system has been rushed into place following an intense lobbying whereby the apparent interests for SMEs has been used as a fig leaf. Politicians have not been aware of what was coming on. A last point: filings at the EPO stemming from EU member states count for at most for a third. That means that two thirds come from outside the EU. As the number of grants more or less follow the same distribution, I have not yet met anybody capable of explaining, how this can be profitable for European Industry and especially the SMEs.
These are some rhetorical statements. Of course the UPC would be bad for Europe, bad for SMEs, and mostly the result of intense lobbying by patent trolls and firms that represent them. All they want is lots of patents — questionable ones included — and more leeway for litigation. Businesses are expected to just supply mountains of money to Team UPC or the litigation ‘industry’; it is unequivocally a tax on innovation.
The bottom line is, the discrepancies between EU law and what the EPO does is a real problem; it shows that an international institution positioned above the law (and routinely exploiting that) cannot be trusted with something like the UPC.
Concerns associated with European patent law, especially scope, are nothing too new. These concerns are some among several that exist. █
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Posted in America, OIN, Patents at 9:14 pm by Dr. Roy Schestowitz
Undoing decades of profoundly misguided policy
Summary: The U.S. Patent and Trademark Office (USPTO) continues along the same path — an encouraging path wherein Section 101 is generally accepted, albeit not by the Director, and the Patent Trial and Appeal Board (PTAB) typically approves/affirms Section 101 rejections; failing that, the courts do the job
THE Open Invention Network (OIN), which has just been described as a “patent protection group”, is perhaps just that. It’s protecting software patents from people like us. Our stance on OIN changed some years back because of Alice, which OIN fails to exploit and IBM actively fights against. IBM is still the most influential player in OIN and it’s not interested in the end of software patents; quite the contrary in fact.
Here are Steven J. Vaughan-Nichols’ views on the latest additions or the latest news from OIN, namely or notably Alibaba. He even uses propaganda terms like ‘IP’ — a term which no doubt this publisher is happy to promote. To quote the opening paragraph:
The American and Chinese trade war is near to boiling. The American attempt to extradite Huawei CFO Meng Wanzhou has failed; China might be behind the Marriott data breach; and China might’ve caused a massive internet disruption. But one perpetual sore point between the US and China — intellectual property (IP) abuse — is taking a step for the better. Alibaba and its affiliate Ant Financial are joining the Open Invention Network (OIN), the pro-open source and Linux patent-protection group.
This adoption of cross-licensing-type attitudes rather than abolishing software patents (i.e. not PTAB-like methods) or eliminating them one by one at PTAB isn’t a good sign. Why not work towards elimination? It shouldn’t be so hard anymore.
Janal Kalis keeps looking for the relatively rare cases where PTAB reverses a decision to grant or reverses a rejection; there’s an effort to demonstrate a disparity and a sort of ‘controversy’, then alleging that the underlying assessment, usually based on Section 101, is problematic. Some days ago he found out that “PTAB [had] Reversed an Examiner’s [Section] 101 Rejection of Claims for a Navigation System in a Patent Application Owned [sic] by Honeywell: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2018000027-11-27-2018-1 …”
So a monopoly got assigned as those above the examiner considered it valid based on Section 101. What would courts say? It’s not likely to ever get that far.
It is rather pathetic that Anticipat, an overzealous opponent of PTAB (no longer so vocal either, so one wonders if it’s a failed/failing business), now resorts to nitpicking — namely selecting one of those relatively rare reversals of an examiner’s decision — to make it sound like an encouraging development which merits “hope” (for patent maximalists). These people generally understand that software patents and business method patents are a waste of time and money, especially in courts. To quote:
There has been much energy focused on the flawed nature of the current Alice/Mayo framework for evaluating patent-eligibility. Even the well-intentioned [sic] desires of USPTO director Andrei Iancu’s to move away from this framework has its limits.
In a recent decision, Ex Parte Pasupulati et al, the Board reversed an abstract idea rejection to a claim directed to integrating an API-based mechanism to a merchant’s website without the merchant having to understand the API or having to know how to code in a language specific to the API. The Board rebuffed the Examiner’s position for both steps.
So it’s a similar situation to the above from Kalis, but it is rare. Ankur Parekh asked Kalis: “Do you have an intuitive sense of reversal and affirmance percentages for 101 at PTAB the last couple of months? Thanks.”
“The latest post on Bilski blog reports that examiners have been affirmed in 92% of 101 appeals recently decided by the PTAB,” Kalis responded. “I think the % of 101 reversals peaked last summer.”
This means that only about 1 in 13 would be reversed. That’s very low actually and we used to write about those things quite routinely early in the year and last year. Courts are even stricter than this, but not many cases get that far because it’s expensive and thus financially risky. But what about lower courts? Welcome to the universe where a nontechnical jury sometimes gets to decide on technical matters. In the following recent example the jury ignored the technical PTAB (its ruling that a patent was invalid). Just like that they got to decide on a case with tens of millions of dollars on the line.
A Delaware jury finds Edwards Lifesciences infringed a transcatheter heart valve technology patent, which was ruled invalid by the PTAB earlier this year
A District of Delaware jury has awarded Boston Scientific $35 million against Edwards Lifesciences in a case involving multiple patents related to transcatheter heart valve technology.
The way things stand, however, abstract patents would rarely get past PTAB and result in any ‘damages’ payment.
Brittany Knight and Anthony Sabatelli wrote for Patent Docs a typical kind of article (for that site), insinuating that a law they do not like needs to “evolve” (i.e. get watered down). Patent maximalists, usually trolls and law firms, still moan about the demise of software patents because of 35 U.S.C. § 101; what they keep saying about Berkheimer is rather meaningless because it has not statistically changed much, especially when one takes into account decreased interest in litigation with software patents, seeing the lack of success in such cases.
Knight and Sabatelli start by explaining things as follows:
Software is a generic term to refer to a collection of data or executing code used by a computer to implement arithmetic operations or logical operations. Back in 1936, Allen Turing, in his landmark paper On Computable Numbers proposed the capable use of instructions (i.e., software) to execute functions through his Turing Machine, an early precursor of the general purpose computer[1]. Today the modern computer is instrumental for complex computations, data analytics, high-powered graphing, simulations, and so on. Although, the development and use of software for these computer functions has become mainstream, determining the patent eligibility of software inventions under 35 U.S.C. § 101 has been less intuitive.
In the wake of the now famous Mayo and Alice decisions, patent subject eligibility is determined through a 2-step inquiry. The first step asks whether, the patent claim is directed to a natural phenomenon, biological process, or abstract idea. Software is generally categorized as being “abstract” because it does not fulfill the more concrete criteria for being a “thing”: i.e., a process, machine, manufacture, or composition of matter. Because software claims often fail the first step of the Mayo/Alice inquiry, the inquiry is next directed to the second part, which determines whether the patent claims add “significantly more” to bring them back within the fold of eligibility. However, meeting this second step has proven challenging in the court of law when it comes to determining patent eligibility of modern computational tools.
Back in the very old days (maybe a decade ago) we still wrote a lot of articles about why software patents are something that should never have been patentable in the first place because it’s more like a rendition and hence it’s suitably covered by copyright law, economically too (no need to undergo a registration process).
Staying on Patent Docs, Michael Borella also wrote about SAP America, Inc. v InvestPic, LLC. The moral of the story? Dare sue a rival with software patents and you’ll end up having to compensate your rival for your false accusation and your fake patent (which is now invalid, too):
We wrote about this case six months ago, regarding InvestPic’s appeal to the Federal Circuit over having its patent invalided under 35 U.S.C. § 101 in the Northern District of Texas. InvestPic did not get the outcome it was looking for. Here, the case is back in the District Court to consider SAP’s motion for recovery of attorney’s fees. As we will see, InvestPic ended up not only with its patent invalidated, but also owing a large chunk of money to SAP.
SAP was originally granted attorney’s fees in 2017, after the District Court ruled, on the pleadings, that InvestPic’s U.S. Patent No. 6,349,291 was invalid under § 101. As noted above, InvestPic appealed and lost.
[...]
This proceeding, however, was put on hold by the Federal Circuit appeal. Now back in the District Court, an order granting much of what SAP requested was issued on December 4, 2018.
SAP requested a total of $939,306.61, which did not include any time from attorneys and staff that worked less than 10 hours on the case. But this amount included time that SAP’s attorney spent on a petition for covered business method review which was never filed. The District Court declined to award fees for the petition.
Also, the District Court found that the rates charged by SAP’s attorneys (“$745.00 – $1,175.00 per hour for partners to $405.00 – $650.00 per hour for associates”) were excessive. In particular, the majority of the partner’s rates were above the 90th percentile for Texas, and the District Court found no evidence to justify the rates being so high. Accordingly, the District Court reduced all partner rates by 35% and all associate rates by 15%. Based on these adjustments, the total amount actually awarded was $679,420.46.
[...]
To further drive home this point, not even the federal courts have been able to crack the § 101 egg. It is well-known that multiple federal judges have commented on the record that Alice was hard to apply in practice. Judge Wu of the United States District Court for the Central District of California criticized Alice for setting forth an “I know it when I see it” test. Judge Pfaelzer, a colleague of Judge Wu, wrote that the Supreme Court’s patent-eligibility cases “often confuse more than they clarify [and] appear to contradict each other on important issues.” More recently, the Federal Circuit’s Judge Plager, wrote that the post-Alice §101 inquiry “renders it near impossible to know with any certainty whether the invention is or is not patent eligible.” And these are just a few examples of judicial confusion. There are more.
Just a few months ago, the Federal Circuit ruled 2-1 that § 101 jurisprudence was too murky to be used as the basis of an attorney’s fees award. While the facts between that case and this one differ, the law does not.
Looking at another site of software patents proponents, Charles Bieneman comes to grip with the fact that his profession, patent litigation, will become rather hard now that software patents are worthless in the US and typically drain plaintiffs’ pockets. To quote:
Patent claims directed to establishing online chat sessions are not patent-eligible under 35 U.S.C. §101 and the Alice/Mayo test, said Federal Circuit Judge Bryson, sitting in the District of Delaware, in granting a defendant’s motion to dismiss. Epic IP LLC v. Backblaze, Inc., C.A. No. 1:18-141-WCB (D. Del. Nov. 21, 2018).
Remember when law firms advised people to paint algorithms as “GUI” to get software patents and other patents that are abstract? Well, forget it. That too doesn’t work. Bieneman’s blog colleague Peter Keros wrote about a patent on “remotely monitoring and controlling irrigation equipment”:
Patent claims directed to a remote user interface displaying a plurality graphical user interfaces (GUIs) were held not patent eligible under 35 U.S.C. § 101 in Valmont Industries, Inc. v. Lindsay Corporation, No. 15-42-LPS (D. Del. Nov. 14, 2018). The Court found that the claims of U.S. Pat. No. 7,003,357 were directed to the abstract idea of “remotely monitoring and controlling irrigation equipment” without an inventive concept, granting a motion to dismiss under F.R.C.P. 12(b)(6).
Here’s Bieneman on 35 U.S.C. § 112:
Claims in a patent directed to medical diagnostics were indefinite under 35 U.S.C. §112(b) and Nautilus, Inc. v. Biosign Instruments, Inc. (S. Ct. 2014), said a court in granting summary judgment of invalidity. Lecat’s Ventriloscope v. MT Tool and Manufacturing, No. 1-16-cv-05298 (N.D. Ill. Nov. 20, 2018).
Last but not least, Bieneman writes about 35 U.S.C. § 112 and “a patent examiner’s rejections under 35 U.S.C. § 101 for lack of patent-eligibility”. It’s abundantly clear that software patents are very weak in US litigation (courts). To quote:
The Federal’s circuit has affirmed a Patent Trial and Appeal Board (PTAB) decision in turn affirming a patent examiner’s rejections under 35 U.S.C. § 101 for lack of patent-eligibility, and under 35 U.S.C. § 112 for lack of written description and indefiniteness, of a product-by-process claim directed to “a resource planning forecast product.” In re Downing, No. 2018-1795 (Fed. Cir. Dec. 7, 2018) (non-presidential).
[...]
Finally, and probably of absolutely no solace to the applicant, the court agreed that the recitation of “the end user” was not indefinite for lack of antecedent basis. Even though the term “the end user” was introduced “without an antecedent basis,” the claim only referenced one and user and it was clear who the end user would be. Therefore, the lack of antecedent basis for this term did not render the claim indefinite.
Even district courts, such as the Northern District of California’s court in this particular case, learned to say “no” to abstract, bogus, fake patents or software patents. Bieneman’s blog colleague Nathan Smith wrote about patent claims on “analyzing and automatically categorizing digital images”:
The Northern District of California recently granted a motion to dismiss based on lack of patent-eligible subject matter, under 35 U.S.C. § 101 and the Alice/Mayo test, in claims of U.S. Patent No. 8,350,928, directed to “a system and method for the automatic analysis and categorization of images in an electronic imaging device.” Secure Cam, LLC v. Tend Insights, Inc., No. CV 18-02750-EJD (N.D. Cal. Nov. 14, 2018). The claims of the ‘928 patent were ineligible because, like In re TLI Communications LLC Patent Litigation, 823 F.3d 607, 613 (Fed. Cir. 2016), the claims were directed to the abstract idea of analyzing and automatically categorizing digital images. Further, like TLI, the claims include physical components, such as a digital camera, “but the physical components ‘merely provide a generic environment in which to carry out the abstract idea.’”
Last but not least, over at Watchtroll Robert Levy weighed in on licensing (fancier term for “paying for”) bogus patents, i.e. patents that are not likely to withstand a challenge in a court, e.g. because of 35 U.S.C. § 101/Alice. Levy cites the Alphacap case (covered here at the time):
All too often, the prospective licensee/purported infringer usually doesn’t begin its efforts to acquire the patent(s) until after making disparaging statements about them during negotiations. As an example, consider the time line discussed in the case of Gust, Inc. v. Alphacap Ventures, LLC, No. 2017-2414 (Fed. Cir. September 28, 2018) in which Alphacap Ventures, the purported infringer, demanded re-assignment of the patent owner’s patents as part of a settlement offer, but only after arguing for the invalidity of such patents under 35 U.S.C. § 101.
Eventually a lot of cases come down to this. The underlying patents don’t pass muster and are therefore not worth pursuing in the first place. In the coming days if not weeks we’ll give some more examples like these. It has gotten a tad tiring/dull because the outcomes are mostly the same. █
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