Bonum Certa Men Certa

On Media Hype, Software Patents, and 35 U.S.C. ۤ 101 Which Annuls Both

Don't be misled by faux novelty (old ideas or abstract ideas disguised as something complicated, physical, and very new)

Entrepreneurs say ‘faux AI’ hype hurts marketing efforts
Reference: Entrepreneurs say ‘faux AI’ hype hurts marketing efforts

Summary: A lengthy roundup of software patents news and spin, culminating not only in demonisation of the current system by patent maximalists but also senseless shaming of science and technology as though these — unlike patent law firms — are the issue

THE EPO likes to refer to software patents by all sorts of three-letter buzzwords/acronyms, including "ICT", "CII" and "4IR" (similar to "Industry 4.0", the previous term they piggybacked). The USPTO does not use these buzzwords, but it's habitually if not growingly subjected to buzzwords inside patent applications, e.g. "cloud" and "AI". This can confuse examiners and this confusion (lack of clarity) can yield an erroneous grant. We wrote quite a lot about it over the past year and we gave many hundreds of examples. The general idea is to work around the law by exploiting words that sound novel and cutting-edge. Examiners cannot quite author a decision for rejection if they fail to grasp the claims, maybe because these claims are intentionally incomprehensible. The examiners do not wish to sound foolish (or unsuitable to assess the said patent/s).

Software Patents Still Being Granted

Looking at this morning's list of "patents awarded" in just one US region, we're still seeing patents that sound like software patents. They don't use terms such as "software patents," but the actual effect is the same.

Yesterday we saw this patent maximalists' blog advertising a "Webinar [lobbying/advertising] on Patent Quality" and somehow we remain really/highly sceptical. We doubt that a bunch of lawyers will speak about the importance of patent quality; they may well hijack the word 'QUALITY' (they use all caps!) however, just like Battistelli does at the EPO. When he talks about "quality" he refers to things like timeliness, not patent quality. The title of this "Webinar" is "Achieve the 'QUALITY' in Patents and Avoid Common Mistakes" and under "“Quality” in Patents" it says "The patent value hierarchy" (whatever that means), "Definitions of “good” and “valuable”," and "Quality in provisional applications and non-provisional applications" (that is not what patent quality technically and traditionally means).

Let's face the fact that software patents are all abstract and are always low-quality patents. They oughtn't be granted at all, but law firms insist otherwise because they profit from it.

Attacking the Enforcer of 35 U.S.C. ۤ 101 (and ۤ 101 Itself)

This same patent maximalists' blog then mentions several other such events. It's purely about lobbying. It's staged to help change the status quo. It's the usual tactic.

Another patent maximalists' blog has just mentioned this upcoming Harvard event -- yet another event stuffed/stacked by Koch-funded think tanks and lobbyists like David Kappos, who works for his pressure group and a patent law firm. Sadly, we are more or less becoming accustomed to such interventions. How about yesterday's piece from the FRAND lobby, this time Annsley Merelle Ward (Bristows) and Richard Vary (Bird & Bird)? A lot of the patents in question are software patents, which they are attempting to put inside standards.

And speaking of lobbyists, watch what the Business Software Alliance (BSA) does politically. As reported some days ago by Bloomberg:

A House subcommittee is weighing whether to continue a Patent and Trademark Office program that allows for challenges of covered business method patents often involving financial or e-commerce-related processes.

The House Judiciary Courts, Intellectual Property and the Internet Subcommittee held a March 20 hearing to discuss specialized challenges under the program, created under the America Invents Act of 2011, that are set to expire in 2020.

Financial services industry lobbying groups have said the covered business methods program helps stem abusive patent infringement lawsuits that assert broadly defined patents. But some software industry trade groups, such as BSA|The Software Alliance, argue that the CBM process hurts U.S. innovation by making it easier for parties to challenge and kill software-related patents.

The BSA, which is backed by Microsoft, has long lobbied for software patents. Even inside standards and even in places that ban such patents. It's like the law does not matter to them, it's only changing the law that they strive for. They want to end or water down ۤ 101.

Counting Occurrences of Buzzwords

For the second day in a row, Managing IP does some patent maximalists' marketing/brainwash for CRISPR patents (not allowed, either). They too cite a biased report of an interest group:

According to iRunway’s 2018 CRISPR: Global Patent Landscape report, 4,706 patents were filed globally in 2015, which represents a 3492% rise

What's noteworthy here is that they merely track acronyms or hype waves, which makes such statistics self-fulfilling prophecies in a sense.

Blockchain and Other New Hype

In software too there are hype waves or buzzwords. Consider, for instance, this new article on "PayPal’s Patent Pursuit" and another about blockchain. Patenting software by using buzzwords, pretending databases are also "blockchain" and stuff (riding the hype wave because it's distributed) isn't a genuine trick. We've been seeing this for a number of months if not a whole year. From the article:

Meadow has taken Oxford's molecule, deployed it to a microchip armed with cryptographic defenses, blockchain log-filing and other software services, all patent-protected through 2035.

That's almost two decades.

Here they are, riding hype waves to patent software because such patents will be rejected unless one fakes 'novelty' (with terms like "AI" or "cloud" or "blockchain"). Another new example is this: "Over 1200 Blockchain Patent Applications Filed in 2017, Up From 594 in 2016"

To quote: "The number of patents relating to blockchain in on the rise. According to data collected by the Korean Intellectual Property Office, more than 1240 applications for blockchain-related patents had been filed across South Korea, the United States, Japan, China, and Europe by the end of January 2018."

A variant of that was posted here, unlike for example this article titled "There is a simple reason for blockchain’s spectacular rate of development, says Alex Sims. No patents" (article from New Zealand, which does not permit software patents).

To quote:

Blockchain technology, which is poised to transform everything from supply chains to insurance and health, has flourished in an open-source environment. This raises questions about whether our current intellectual property laws are fit for purpose when it comes to fostering innovation.

Intellectual property laws, such as patents and copyright, are premised on the incentive theory. To incentivise people to create, they are given, in effect, a monopoly (with some exceptions) on their creations and can go to court and stop others from free-riding on their work.

Blockchain hype isn't a new thing. And we won't stop hearing about it any time soon, especially from those looking to patent something with a database (while making it sound more novel). "Blockchain" is not a made up concept, but it is nowadays misused to refer to things that are not blockchains and those who count occurrences of the term (in media or in patents) merely perpetuate this hype.

How about software patents disguised using words like "Autonomous Vehicle" (another recent hype wave), as seen here some days ago? Or "Machine Learning", as seen here? Imaging and Machine Vision Europe spoke of companies that "were recently granted four new patents for several aspects of its technology, including visual sensing and processing software that improves the efficiency and safety of automated robotic systems."

This has ۤ 101 all over it. Jones Day is also the latest law firm to use buzzwords and hype waves like "Artificial intelligence ("AI") and big data ("BD")" (yes, they gave that an acronym) to sell their worthless services under the headline "Protecting Artificial Intelligence and Big Data Innovations Through Patents: Subject Matter Eligibility" (again, same old tactics).

Artificial intelligence ("AI") and big data ("BD") innovations are a driving force of the current technological revolution, dramatically changing the way we search for information, communicate, operate devices, manufacture things, and solve problems. Companies have traditionally turned to patents as the strongest mechanism to protect their innovation and secure investment.


One of the bigger challenges facing the patenting of AI and machine-learning inventions is subject matter eligibility under 35. U.S.C. ۤ 101, in particular as applied in Alice and its progeny.

So they just hope that fancy words will bypass ۤ 101?

Even a "three-dimensional vision guidance software" isn't patent-eligible. Geometry is mathematics. Will the examiners at the USPTO please stop granting patents on pure science-/cutting-edge-sounding software hype? From this article:

With early implementations in place and 20 patents in the pipeline, he adds that “now is the time” to build sales channels for its three-dimensional vision guidance software.

This certainly won't be the end of that. We'll continue to keep abreast of it.

Watchtroll Once Again Attacks and Smears the Actual (Producing) Industry

Patent maximalists work hard (or overtime, especially weekends) on making the above-mentioned maximalism the 'norm'. They try to thwart Section 101 and PTAB for enforcing Section 101. As recently as last week PTAB was criticised by Watchtroll for tackling patents on DRM. To quote: "Grecia did file a patent infringement suit against Visa in the Southern District of New York back in November 2015. That case was dismissed with prejudice in November 2017 with both parties stipulating to the dismissal of claims. Grecia’s ‘555 patent has been challenged in four inter partes review (IPR) proceedings at the Patent Trial and Appeal Board (PTAB); two of those petitions have been denied and one was settled pre-institution. The ‘860 patent has been challenged five times at PTAB leading to two pre-institution settlements and one post-institution disclaim."

Not surprising at all. DRM is pure software. Watchtroll's Gene Quinn is just pushing patent maximalism for the purpose of attracting clients rather than anything else and his protégé Steve Brachmann actively attacks technology companies as if technology itself is a threat. This lobby of patent trolls and patent predators (mostly lawyers) continues attacking and demonising technology firms as though it forgets to masquerade as caring for innovation. Do these people realise how utterly foolish and ruinous they make themselves look? They don't help science and technology but sabotage both. 5 days ago they even gave a platform to Michael Shore, the patent 'scammer' (now a writer at Watchtroll). Not too shockingly? He too smeared technology companies. Each time these patent extremists -- including patent law firms -- prop up China as a model example and bash technology firms in the name of patent maximalism they merely reinforce the view that such extremism is a threat to society.

Staying with Watchtroll for a bit, watch its latest attack on PTAB from yesterday (there was actually another such attack that day). Totally ridiculous statements from Watchtroll on a Sunday say things like "The United States Patent and Trademark Office (USPTO) has admitted to stacking panels..."

No, it did not. Another bit of made-up nonsense from Gene Quinn, linking to himself as "proof" of this ludicrous claim. And it's not just Watchtroll. In the past day alone we saw similar criticisms/posts from David at Patently-O and Patent Docs (basically, how to work around PTAB IPRs).

Still Name-Dropping Berkheimer

Days ago Berkheimer was brought up again by Michael Borella at Patent Docs. The patent maximalists now worry that ۤ 101 is as tactful as always (and thus software patents banned); what's at stake isn't facts, but they carry on with their inane canard about Berkheimer:

The Court noted that some ۤ 101 disputes may be resolved as a matter of law when there is no material issue of fact regarding whether one or more claim elements, or combination thereof, are well-understood, routine, or conventional to a person of ordinary skill in the art. Based on this reasoning, HP's summary judgment motion for ineligibility was reversed and remanded to the District Court for further proceedings. The Court reiterated this position a few days later in Aatrix Software Inc. v. Green Shades Software, Inc. and three times since then in nonprecedential decisions.

This line of cases, all but one involving Judge Moore in the majority opinion, has sent patentees, practitioners, and commentators into a minor tizzy. And certainly it has opened the door for a number of interesting questions: What does it take for a patentee to establish that there is a material issue of fact? Will ۤ 101 disputes become a battle of experts? Will ۤ 101 issues now need to be explained to a jury? How "understood" does a claim element need to be in order to qualify as "well understood?"


HP goes on to note correctly that many, if not all, previous ۤ 101 appeals were decided as a matter of law, and that the Berkheimer panel deviated from this trend. Nonetheless, neither the Supreme Court nor the Federal Circuit ever mandated that all ۤ 101 analyses must ignore facts -- only that eligibility decisions could be ripe for judgment on the pleadings or summary judgment when facts are not in dispute. HP attempts to make hay of the extent that the courts (and the USPTO) may have carried out the analysis otherwise.

HP also states that asking "whether the invention describes well-understood, routine, and conventional activities" is the wrong question. HP does have a point that "[a] claim that merely applies a new abstract idea . . . might not describe well-understood, routine, and conventional activities." (For instance, a newly-discovered equation is abstract, but by definition not conventional).

Charles Bieneman too is still writing endlessly about Berkheimer [1, 2], as does his colleague/blog guest Mike McCandlish, who alludes to this recent decision from Judge Koh. To quote: "Claims from two out of three patents for providing haptic feedback to computer users survived a motion to dismiss based on a patent eligibility challenge under the Mayo/Alice test and 35 U.S.C. ۤ 101. Considering their character as a whole, the court found that the claims were not directed to abstract ideas. Immersion Corp. v. Fitbit, Inc., No. 17-CV-03886-LHK, (N.D. Ca., March 5, 2018). The court held claims of a third patent to be patent-ineligible."

That was just the latest of many examples of Section 101 being in tact and being effective.

Comparing Patent Judges to "Death Panels"

A few days ago, James Bollinger, who is a partner at Troutman Sanders in New York, wrote about €§ 101 and said: "Many of the existing pool of patents in software and diagnostics—fast growing and sizable market sectors—were invalidated in a single stroke. American Invents Act—Inter Partes Review of Patents."

Very good. He continued: "These clearly high-stake cases were interspersed with the growing presence of Non-Practicing Entities (NPEs) [trolls] —patent pools, “trolls” and the like). These actions rarely involved large damage awards, but were characterized by multiple settlements for smaller amounts—settlements that however quickly grew to substantial sums."

This sounded like a promising article, but further down the article said "Death Panels—The New Paradigm" -- in effect comparing patent quality (again) to assassination. These people are radical, they're mentally detached from reality.

Mass Invalidation of Software Patents Carries On

How about Mr. Gross, whose rants about PTAB culminate in actual acceptance that some IBM software patents are bunk? Or this other IBM patent application, which was rejected by an examiner but not by PTAB? Most of the time, like this past Friday, IBM's patents are found to be invalid with few rejection reversals being noted and Berkheimer named aplenty. What we think we're seeing here is growing acceptance that nothing has really changed after Berkheimer and PTAB is here to stay in its current form.

"Stupid Patent of the Month"

The EFF's Joe Mullin, in his latest example of "Stupid Patent of the Month," has just mentioned Berkheimer as well. "A patent on "electronic tokens" is being used to sue small gaming studios," the EFF wrote. "It's exactly the kind of abuse we need the Alice decision to protect against."

To quote the actual article:

Changes to the patent system, including the Alice v. CLS Bank decision, have helped make it easier for a company like Playsaurus to resist against a bogus patent demand. But Alice has threatened the trolling business model so much that it keeps facing threats, in both courts and Congress.

A recent decision called Berkheimer v. HP may make it much harder to defend a case using Alice. In Berkheimer, the district court invalidated a patent that described a system for “archiving and outputting documents.” But the district court judge was overturned on appeal, when the U.S. Court of Appeals for the Federal Circuit held [PDF] that whether or not a technology was “well-understood, routine, and conventional” is a factual determination that requires more proceedings.

This ruling could undermine a key benefit of Alice: namely, that patent defendants shouldn’t have to engage in expensive discovery and trial proceedings to negate patents that are abstract on their face. The defendant in that case, HP, has asked the full Federal Circuit to reconsider that decision, and we agree that it warrants the court’s attention.

Businesses like Playsaurus shouldn’t have to go through extensive discovery and motion practice to prove what real innovators in their industry know: e-tokens are an abstract idea and not eligible for a patent. Neither are ideas like tracking a package, or remotely diagnosing an illness, or holding a photo contest. The Alice decision is indispensable to small businesses that are being held up by such patents, and it’s worth protecting.

Berkheimer did not change much in practice. But it's just mentioned a great deal nowadays, especially in articles composed by the patent microcosm and by groups that have Koch-funded roles.

ۤ 101-Hostile Scholars Unnamed

IAM's Adam Houldsworth now shelters new propaganda behind more paywalls, so it's hard to tell if these "law professors" that it named the other day are those notorious Koch-funded ones who attack PTAB and promote software patents for a salary.

The patent trolls' lobby, IAM, wrote this:

Lower courts in the US have been applying overly-restrictive criteria for patent-eligible subject matter that conflict with Supreme Court precedents, six prominent patent law scholars have claimed. It is this misapplication of the Alice-Mayo test, they say, rather than the Supreme Court Alice decision itself , that has made it unduly difficult to protect diagnostic method patents since 2014. The argument is made in an amicus brief recently submitted to the Court of Appeal for the Federal Circuit in support of the Cleveland Clinic Foundation’s attempt to reverse the cancellation of its patents covering diagnostic methods for atherosclerotic cardiovascular disease.

There are no links and no names, except for subscribers. We can only imagine who these scholars are and who they are affiliated with.

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