Bonum Certa Men Certa

Abstract Ideas and Mental (Thoughts) Type of Claims Still Deemed Patent-Ineligible, Buzzwords Are Used Instead

"Cloud Computing", "AI" etc. in so-called 'IP Five'

Cityscape Delaware



Summary: The District Court for the District of Delaware (above) now attracts a lot of patent litigation; this court, however, isn't so tolerant of software patents (more like the Federal Circuit and less like East Texas); in East Asia buzzwords are also being used, but courts aren't necessarily tolerant of abstract patents; Europe is a mess because of the EPO's abuses

THE Patent Trial and Appeal Board (PTAB), together with the USPTO as a whole, is doing what patent law firms fear the most. There's a wide-ranging patents cull and the most common criterion for culling is abstract claims.



Ancestry (the company), according to this new tweet, "Argues that the 23andMe Patent Asserted Against It is Invalid under Mayo/ Alice: https://dlbjbjzgnk95t.cloudfront.net/1059000/1059443/show_temp%20(25).pdf…"

"Buzzwords like "cloud" don't magically render algorithms more "concrete"."It is. We wrote about it before. It probably won't be long before this whole lawsuit collapses, sending a warning sign to anyone who feels courageous enough to still use software patents in 2018. They can call these anything they want, but the courts eventually assess whether claims are abstract or not. The cloudwashing of software patents, for example, won't work either. Buzzwords like "cloud" don't magically render algorithms more "concrete".

Covering a relatively new case from the District Court for the District of Delaware (where much of the litigation now happens), patent maximalists speak of "€§ 101 issues in light of Federal Circuit patent-eligibility decisions since early 2016."

To quote the entire opening paragraph:

This month, in an infringement case against Defendant Amazon, Judge Stark of the U.S. District Court for the District of Delaware ruled that Plaintiff Kaavo Inc.'s cloud computing claims are patent-ineligible under 35 U.S.C. €§ 101. In related cases dating back to 2016, the Court ordered that the asserted independent claims be found patent-ineligible, as well as one of the dependent claims. The Court later ordered limited discovery, claim construction, and summary judgement briefing with respect to the eligibility of the remaining dependent claims. Kaavo then moved for reconsideration of the Court's Order invalidating all of the asserted independent claims and the one dependent claim, whereas Amazon moved for summary judgement. The Court denied both motions without prejudice and instead ordered new briefing to allow for consideration of the €§ 101 issues in light of Federal Circuit patent-eligibility decisions since early 2016. Renewals of both motions were at issue in this latest decision, in which the Court granted Amazon's renewed motion for summary judgement of invalidity of the remaining dependent claims and denied Kaavo's renewed motion to reconsider.


Looking eastwards towards China, the main/only country that still permits software patents, Jacob Schindler wrote about declining winning rates in courts there. To quote:

IP House – a litigation analytics outfit based in Beijing – recently released a Chinese-language study of cases involving semiconductor patents from its database. It has been shared an analysed by Berkeley professor Mark Cohen on his China IPR site. Of note: this sample of cases does not yield the high plaintiff winning rates we are used to seeing in macro-level Chinese patent statistics. First off, the selection of cases is relatively small. IP House turned up 133 first instance civil trials which yielded a judgment containing the word ‘chip’.


So even in China patent litigation is still not a "winning" strategy. Here is another new article about China, this one about abstract patents on GUIs:

In 2014, the number of design patents with GUI in China was more than 5,000, which was 6,638 in 2015, and 9,864 in 2016, a growth rate of up to 48.6%. In 2017, this number basically equaled that in 2016.


Is the bubble in China starting to burst? It is no secret that China just grants far too many low-quality patents (not even patent maximalists are disputing it!), which means that they make a mockery of the very concept of patents.

"Software patents by any other (buzz)name/word..."Earlier this week Managing Intellectual Property wrote about patent filings in China and then did another piece about "blockchain, AI, software patents" in China. Well, those are pretty much the same thing. Software patents by any other (buzz)name/word...

Artificial intelligence ("AI") is nothing news. They just call more and more old stuff "AI" in an effort to generate public interest/hype. For the third time this week the same site did a piece dedicated to "AI", in which Ellie Mertens said:

Artificial intelligence will have a big impact on IP prosecution and litigation. Ellie Mertens takes a look at how it will change life for patent practitioners

Artificial intelligence (AI) relates to patents in two main ways. First, advancements in the technology can be protected by patents. Second, AI can be applied to the patent space to reduce inefficiencies.


They're talking about whether automation (not "AI") can make some tasks of law firms (e.g. search) more efficient and thus render some workers redundant.

Looking at Europe, there's this new article by Frances Wilding, David Lewin, James Ward and James Sunderland (Haseltine Lake LLP). It promotes hype and buzzwords as surrogates for software patents at the EPO ("Neural Networks, Machine Learning And Artificial Intelligence"), in effect parroting Battistelli-produced propaganda from earlier this summer:

A recent EPO report talks about "A new era of technological development characterised by digital transformation", based on "information and communication technologies" ("ICT") and amounting to a "fourth industrial revolution". The present review looks at three specific aspects of ICT – neural networks, machine learning and artificial intelligence – which the EPO report groups together as "enabling machine understanding".

Developments of these aspects may relate to their implementing hardware and software or to any of the extensive range of their possible applications, for example from assisting medical diagnosis to image recognition to natural language understanding to operating wind turbines to playing the game of go. This means that capture of relevant patents and applications using the International Patent Classification (IPC) is challenging, as incidentally illustrated by the EPO report.

This review takes a simple and direct approach: using full texts and keywords "neural network", "machine learning" and "artificial intelligence", searches for European patents having patent (B1) publication dates over the 10-year period 2008 to 2017 were carried out.


Notice how many other buzzwords they throw into the mix, including the EPO's favourites, "ICT" and "fourth industrial revolution".

Over at the Battistelli-leaning IP Kat (it became the opposite of what it used to be) there's this new lengthy post about rulings from the EPO. "According to UK case law and the Technical Boards of Appeal (TBA) of the European Patent Office (EPO)," it said, "for a range overlapping with a known range to be novel, the prior art must at least not disclose specific values within the overlapping range. This is the principle that a generic disclosure is not novelty destroying for specific examples covered by the generic.

"The TBA have established further criteria for an overlapping range to be novel. The claimed range must also, for example, have a technical effect. These criteria can seem addressed to the question of inventiveness as opposed to novelty. For this reason, the UK courts have previously been reluctant to adopt the TBA approach. The recent decision by the Court of Appeal has now firmly incorporated part of the EPO's approach into UK case law."

As a reminder, the TBA does not enjoy independence anyway. The Boards of Appeal (BoA) are being threatened and the EPC was essentially killed by corrupt Battistelli (shredding it to pieces over the years). Mind the following new comment:

For me, this is a fine example of different jurisdictions helping each other to feel their way forward under the substantive provisions of patentability/novelty of the EPC. I like it, when the jurisprudence of English law, and that of the Boards of Appeal, converges, despite the gulf of difference between them in how they assess evidence of fact.

It seems to me that, because of rivalry between EPC jurisdictions, progress under the EPC is almost Darwinian, survival of the fittest legal logic. Keeping novelty distinct from obviousness is easier said than done but here again, Europe leads the way, thanks to the EPC, Art 54(3).

Where else in the world, outside Europe, is there so much legal certainty, what is patentably novel, and what is not? Why, in the USA, they seem not yet to have got as far as considering elementary quesations about novelty, like whether D1 is to be construed as of its date of publication, or as of the day before the date of the claim.


UPC threatens to change all that. It would broaden patent scope in the whole of Europe in one fell swoop if somehow (miraculously) it became a reality.

Going back to East Asia, there's this news about standard-essential patents in Japan, alluding to patent lawyers as "IP [sic] lawyers" or "Practitioners"; they're neither because "IP" is just a misleading term and because they practice nothing, they're blood-sucking parasites looking to exploit (or prey on and tax) those who practice technology. Those are the types of people who lobby hard for the UPC. Anyway, the article says the following:

IP lawyers in Japan say the standard essential patent guidelines are a good start but will not have much case impact because they are not legally binding

The Japan Patent Office has released guidelines to licensing negotiations involving standard essential patents (SEPs).


Japan has attempted to reduce abuse and aggression with patents. Remember that the JPO and Japan's patent courts aren't the same thing. Software patents and other abstract patents aren't favoured there unless buzzwords are used, e.g. IoT.

Oddly enough, citing just one person (whose blog post IAM reposted) IAM now says this: "Business method patents may be out of favour in the US, but in Japan they are enjoying a comeback, while in China they are surging."

Well, China suffocates itself with low-quality patents on mere ideas, guaranteeing its industry will sink under lawyers' weight. As for Japan? It has only gotten tougher. But IAM, being the lobby of patent litigators, focuses on China instead when it says:

When people talk about Chinese innovation, e-commerce is often among the first subjects to come up. Mobile payments and related technologies are ubiquitous, as anyone knows who’s tried to pay cash for anything in Shenzhen or Beijing recently. So it is not much of a surprise that SIPO patent applications covering business methods are swelling. Policy changes implemented last year point toward continued meteoric growth. For each of the past couple of years, the Japan Patent Office has compiled an update on the status of business method patents in Japan and around the IP Five.


IAM calls this "favourable policy environment"; favourable to whom? Trolls? What about those whom they target? If IAM was to speak honestly, it would rename and the acronym IAM would be expanded to "International Attorneys' Mind-control".

Recent Techrights' Posts

Social Control Media Relies on Advertisers, So It'll Always Be Hostile Towards Free Software
Sales, sales, sales
Fragmentation of Data
Life is too short to "hoard" data
Jamie Zawinski Complained About Wayland, Then Decided to Give It a Go, Now Complains Again About Wayland
Ask IBM (Red Hat) why it's worth throwing so much away just for Wayland fanaticism
Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
Taking Stock of a Good and Productive Week
We shall now be taking a break, unpacking the new hard drive (8 TB), and making backups of everything
 
Europe's Second-Largest Institution (EPO) and Largest Patent Monopoly Office Needs More Transparency, Not Less Transparency
In the EPO, what good are elections when one candidate literally bribes all the voters?
How Not to Report News About Microsoft
This pattern of misreporting is so widespread that it's hard to believe it's not intentional
Computer Science is Under Attack, They Want Everyone to be a Consumer
If people can no longer acquire Computer Science education and real Computer Science experience, they will not know how to control their own digital destiny or emancipate the very same universities that now control the syllabus and instead of teaching Computer Science encourage the outsourcing of systems
The Best Tools Are the Simplest Tools
There's a hidden message here about the merits of sticking with X
Ofcom Online Safety Group Speaks of Protecting Women Online, Will Brett Wilson LLP Ever Listen?
They've essentially became like the Taliban's "burka police"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 20, 2025
IRC logs for Sunday, July 20, 2025
In Defence of "Spinning Rust"
Just because something is "old" (or older) doesn't mean it ought to become extinct
Using Free Software to Prepare Legal Documents
LibreOffice is openly complaining about OOXML as an obstacle
Tech and Technology Are Not the Same Anymore
"Are you into tech, Sir?"
Our Articles About SLAPPs Receive Recognition and Interest
This week we shall continue writing about the 3 lawsuits we filed
Are You Served?
For many people, advocacy of Free software and GPL enforcement are assumed to be happening
Conspiracy or grooming? Alex Jurado, Voice of Reason compared to Outreachy
Reprinted with permission from Daniel Pocock
Links 20/07/2025: Security Breaches and Former 'Open' 'AI' Engineer on Hype and Culture Issues
Links for the day
Links 20/07/2025: Fending Off BRICS and US Government Attacks Its Own Media (Like China and Russia)
Links for the day
Framed by social control media: Alex Belfield, Voice of Reason
Reprinted with permission from Daniel Pocock
Gemini Links 20/07/2025: Summertime and OCC25 Wrap-up
Links for the day
Slopwatch: Planet Ubuntu, LinuxSecurity, and More
former "Linux" blogs which basically became slopfarms
Links 20/07/2025: More GAFAM Lawsuits, Layoffs, and SLAPPs
Links for the day
Nice Recovery (From Actual Fire) by PCLinuxOS, New Version of PCLinuxOS Released, Now Top of DistoWatch
PCLinuxOS is a community-driven distro
More Microsoft Shutdowns That Mostly Slipped Under the Radar
Remember what happened to books 'sold' by Microsoft?
Microsoft Lunduke Still Fighting Cancel Culture With... Cancel Culture
There will be no "winners" in such 'debates'
The History of Daily Links and Politics
"I support Wayland, but I also support abortion..."
Ageism in Tech
Your protocol is "old"...
Microsoft is at 0% "Market Share" in Most Areas
Depending on the taxonomy chosen, there may be dozens of categories other than desktops and laptops
"The moment MSFT stock fails to start tumbling, that’s the beginning of another corporate giant going under."
There are far more layoffs at Microsoft than at Intel, but you would not get this impression based on Wall Street media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 19, 2025
IRC logs for Saturday, July 19, 2025
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025