Bonum Certa Men Certa

The Lobby for Software Patents -- Including Microsoft-Connected Law Firms -- Clings Onto One Patent From a Microsoft-Sponsored Patent Troll

It helps to follow the money...

Microsoft Finjan stake

Summary: There's no evidence that software patents are coming back to the US any time soon, but lobbyists of this 'cause' (like the firm of Bill Gates' father) obsess over a single patent of the Microsoft-sponsored Finjan, hailing it as some sort of 'evidence' of a resurgence

THE UNITED STATES is certainly moving away from software patents. Don't be misled by those who claim otherwise. They're typically those who stand to gain (financially) from the practice of patenting algorithms -- not because they actually develop software/write code but because they work for law firms that milk coders. I have been writing about it since my early 20s and I know how these people think. They're not honest. They tend to be pretty greedy and they justify their lies to themselves (e.g. about coders needing patents and about software patents having 'teeth' in the UK).

Earlier today the Indian press published something titled "Where is Indian science headed?" It looked OK until the following sentence: "Software patents have been on the rise vis-a-vis pharma patents and this is MNC-driven, especially at the US end."

What planet is he living on?! The US cracks down on software patents. The only thing on the rise is invalidation of software patents.

Record year for PTAB, as we noted here before, is something that even foes of PTAB find themselves having to admit today (IAM's own headline said "PTAB breaks records" a few hours ago). PTAB is very important because it eliminates many USPTO-granted software patents, even when there's no lawsuit but merely a threat of one (trolls do this a lot, especially to poor people/businesses because it keeps the racket safer from scrutiny). There's nothing new to see in that IAM article; IAM is just reprinting charts from RPX and Unified Patents. Let's pretend for a moment that IAM is serious journalism and not just lobbying. Oh, wait; never mind... that would be hard to pretend.

Let's look at how the patent microcosm is attempting to spin decisions of the Court of Appeals for the Federal Circuit (CAFC). CAFC has just agreed (as usual) with PTAB and threw away a bad patent (not about software, but problematic for other reasons). Donald Zuhn wrote about it:

Last week, the Federal Circuit affirmed the rejection by the U.S. Patent and Trademark Office's Patent Trial and Appeal Board of claims 1-7 of U.S. Patent No. 6,284,471 as being unpatentable under the doctrine of obviousness-type double patenting. Janssen Biotech, Inc. and New York University ("Janssen"), co-assignees of the '471 patent, argued on appeal that obviousness-type double patenting was not applicable because the safe-harbor provision of 35 U.S.C. § 121 protected the '471 patent claims. In affirming the Board's decision, however, the Federal Circuit determined that the '471 patent was not entitled to safe-harbor protections. [...] The opinion concludes with the panel finding to be unpersuasive Janssen's argument that the Board erred by failing to apply a two-way test for double patenting. Instead, the panel concluded that Janssen failed to establish that the PTO is "solely responsible" for any alleged delay associated with the issuance of the '471 patent. Finding that the '471 patent was not entitled to safe-harbor protections, and that the Board did not err in applying the one-way test for double patenting, the Federal Circuit affirmed the Board's rejection of claims 1–7 of the '471 patent as being unpatentable under the doctrine of obviousness-type double patenting.

The Federal Circuit (CAFC) almost always agrees with PTAB. In 2016 and 2017 estimates stood at about 80% validation rate (CAFC validating the PTAB's judgments in 4 out of 5 cases). The patent microcosm does not like pointing it out because it wants us to think that PTAB does mock trials or is a "kangaroo court" (Watchtroll used that smear yesterday).

Here is something we found curious this morning. Nolan R. Hubbard and Kenneth C. Liao from K&L Gates (the firm of Bill Gates Sr. and hence somewhat of a Microsoft proxy) continue to lobby for software patents in the US. Microsoft can pretend to have nothing to do with it, but over the years we covered the many overlaps at K&L Gates. They actually use as their CAFC case study this Microsoft-sponsored patent troll, Finjan. To quote a portion:

Many software-related and business method-related patents have been invalidated for being directed to “abstract ideas.” On January 10, 2018, in Finjan, Inc., v. Blue Coat Systems, Inc., the Federal Circuit affirmed the district court’s holding that Finjan’s U.S. Patent No. 6,154,844 (“the ’844 patent”) [1] was not directed to an abstract idea and was therefore patent eligible subject matter under 35 U.S.C. § 101. The court’s threshold test for patent eligibility under § 101 is “whether the claims focus on the specific asserted improvement in computer capabilities . . . or, instead on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” [2] The court’s recent decision provides additional guidance regarding the types of claims that constitute specific improvements in computer capabilities rather than being abstract ideas. The court additionally ruled on issues of infringement and damages.

They must love Finjan -- a troll case that we first covered weeks ago (we have written approximately half a dozen times about it since). Also today there's this article titled "The Current State of Computer Software Patentability" (sounds authoritative enough a headline). "It’s hard to predict the future of computer software patentability," says Adam Richards (sales and marketing person), who tries to sneak in software patents in spite of Alice. From his column which cites Microsoft cases like Enfish (CAFC level):

The intellectual property protection of software is extremely important for every industry. After all, the modern society depends on computer software. However, the intellectual property of it has been debated in recent years. Back in 2014, the United States Supreme Court made a huge patent decision. They stated that simply adding computer language to ordinary aspects of technology were not enough for someone to deserve a patent.

Before this decision was made, many thought that software patents would be completely eliminated. The Supreme Court decided not to take it that far and noted that software patents will still be allowed. Nevertheless, in order for someone to earn a patent, they would have to either improve an existing technological process or improve the functioning of the computer. Following this decision, a lot of patents became invalid since district court judges figured that most of them were simply abstract ideas that never even deserved a patent to begin with. It also became harder to obtain software patents because of the expectations.


It’s hard to predict the future of computer software patentability. After all, there haven’t been a lot of cases where a software invention was eligible for a patent. However, each case helps inventors learn more about how to determine patent eligibility for their innovations. Every company is encouraged to at least try and see if their software patents could be valid, even though the odds are against them.

The odds are indeed against them. Last year CAFC threw away pretty much every software patent. The Supreme Court won't overturn its judgment on Alice-type cases any time soon (if ever).

CAFC has meanwhile moved to ruling on another patent case involving so-called 'Divided Infringement' (capitalised even because it became somewhat of a formal term). As one law firm has just explained it:

Reaffirming the breadth of the Akamai standard for divided infringement, the US Court of Appeals for the Federal Circuit vacated a summary judgment of non-infringement where two steps of a four-step method for luggage screening were performed by the Transportation Security Administration (TSA) rather than by the defendant. Travel Sentry, Inc. v. Tropp, Case Nos. 16-2386; -2387; -2714; 17-1025 (Fed. Cir., Dec. 19, 2017) (O’Malley, J).

We certainly hope that CAFC and the Supreme Court won't do anything irrational in the sense that it feeds hopes of a software patents resurgence. One troll case where one patent among many survived the Section 101 test is hardly hope, except for wishful thinkers looking to deceive readers/clients.

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