02.11.19

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The American Software Patents Lobby Has Died

Posted in America, Europe, Patents at 12:14 am by Dr. Roy Schestowitz

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Summary: Voices of US law firms (i.e. patent maximalists) have become quieter and rarer; applications for US patents have decreased in number, patent litigation numbers have collapsed entirely, and patent maximalists have moved on

FOR FIVE HOURS over the past weekend I monitored news about patents worldwide, spending much of the time assessing outcomes of cases (the Federal Circuit in particular), new patent grants from the U.S. Patent and Trademark Office (USPTO), and Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs). It seems like the only “good” news patent maximalists have had was one or at most a couple of instances of PTAB overturning an application’s rejection (examination level, akin to appeal or opposition). It’s just about the lowest form of a “win” for them and it is quite revealing. We also saw some law firms bringing up Berkheimer one year later, as expected. I saw quite a few court outcomes against software patents and just about nothing for (in favour of) them. Links are omitted because, as we said at the end of last year, we would rather not focus much on the US anymore; the critical issues are at the European Patent Office (EPO). As for east Asia, Korea and Japan have curtailed software patents somewhat, whereas China creates additional appeal courts, perhaps having realised that many Chinese patents lack merit, hence safety nets for defendants are needed.

Last night we saw this new comment in IP Kat, which suppresses discussion about EPO scandals. It’s about getting around the EPC to patent things which were clearly not meant to be worthy of a patent (or eligible for one):

Article 53(c) EPC does not allow the patenting of methods for treatment, which is what a use claim would be.

To compensate, the legislator initially introduced what is now Article 54(4) EPC and, with EPC 2000, added Article 54(5) EPC. These provisions allow the patenting of a known “substance or composition” for a new first or second medical use. In these particular cases (only), a new use does make the product new (and potentially inventive).

A few hours ago a succinct reply was posted.

An expansion of the scope of patents has always been problematic; we see this in the domain of software patents; António Campinos (or Team Campinos) nowadays refers to such patents as “AI” or “blockchain” or whatever, adding to Battistelli’s “4IR”, “ICT” and Brimelow’s (or predecessors’) “CII” etc.

We intend to focus a lot more on this subject in the coming year if not years. As a software developer myself, the subject matters to me and I have a reasonably OK grasp/understanding of it (technically, not legally). It’s worth noting that software patents proponents have been muted. They’ve willfully become mute if not also deaf (to courts’ arguments against such patents). Watchtroll seems to be dying. The front page of the site reveals no comments (open to all, unlike other sites), at least on the past few posts (weekend) and I reckon they’ll be another shelved domain in a few years. The patent maximalists will need a career change (like this site’s founder, who stepped down from his role last month after 20 years). He started a job at some law firm.

IAM has meanwhile mostly vanished behind an aggressive paywall, its Twitter account sees not much activity, and fellow patent maximalism sites have become either entirely dormant or rarely active (once in a few months). Patent Docs is about 70% ads now. Patenty-O? Ha. Barely active compared to a year or two ago. Its latest post deals with a case that concerns not software but dental stuff. “This approach here is properly seen as a patent drafting trick rather than an improved disclosure or invention,” it says. In broader context:

In the first decision in this case, the district court considered the claims, specification, and prosecution history and found that the claims should be interpreted to require a double pass — even though not expressly required by the claims. Because the accused infringers only used a single-pass, non-infringement was then an easy finding.

On appeal, the Federal Circuit has rejected the narrow claim construction. As is its process, the court began with the claim language — finding that ” at least based on the plain language, the claims are not limited to a repeated desmear process.” Moving then to the specification, the court found no “clear and unmistakable disclaimer” of the claim scope covering a single-pass method. For the court here, the deciding factor appears to be the patent attorney’s care in drafting the specification. Here, the specification calls double desmear “one technique” that the invention “can be carried out” and “for example” rather than calling the approach “the invention.”

This approach here is properly seen as a patent drafting trick rather than an improved disclosure or invention.

The bottom line is, we’re extremely pleased to see software patents defeated in the US and proponents of software patents ‘moving on’ to other things. We shall therefore focus more on Europe.

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