Bonum Certa Men Certa

From the Eastern District of Texas (US) to Australia Patent Quality Remains a Problem

Patents of all colours of the rainbow

Appeal to swatches



Summary: Patents on anything from thoughts to nature/life (in the US and in Australia, respectively) demonstrate the wildly wide range (or spectrum) of patents nowadays granted irrespective of their impact on innovation

A FEW HOURS ago Eibhlin Vardy published this post (part of a series) celebrating patent maximalism at the USPTO, whose ten millionth patent may ironically enough be bunk.



"We might already be in the midst of such a decline, i.e. a restoration of patent quality."What if patent grants started to decline in terms of number, e.g. each year that goes by (rather than the opposite)? We might already be in the midst of such a decline, i.e. a restoration of patent quality.

Well, a system which strives to grant as many patents as possible isn't one that necessarily encourages innovation and in many cases it actually prioritises monopolisation at innovation's expense for numbers' sake; that would practically discourage innovation.

A few days ago we saw this news report about a patent on “[s]ystem and method for data management,” i.e. a software patent and hence bunk patent. The US District Court for the Eastern District of Texas is a national and international laughing stock because of stuff like this:

Papa John’s International and its subsidiary Star Papa have been sued over the US-based pizza franchise’s mobile app.

Oklahoma-based Fall Line Patents filed its patent infringement complaint yesterday, August 15, at the US District Court for the Eastern District of Texas.

Fall Line Patents is the owner of US patent number 9,454,748, called “System and method for data management”.

According to the complaint, the patent “teaches methods for managing and collecting data from a remote computing device” by gathering location-specific information on different hardware and software platforms on one device.


This is a relatively new patent, judging by its number. This ought to go to the Patent Trial and Appeal Board (PTAB) through an inter partes review (IPR); if needed, the Federal Circuit would likely affirm an invalidation; Papa John’s can afford this. Such is the high cost of sloppy patent grants pertaining to abstract ideas. Watch who got the patent; it's an entity outside Texas (Oklahoma is far away) and it's called "Fall Line Patents". We wrote about it last year and a few months ago when Unified Patents implicitly called it a patent troll. Why are these patents still around? Moreover, why are such patents still being granted after Alice?

Are patents being granted for the sake of numbers or for the sake of innovation? Judging by this new press release [1, 2], the repository is nowadays treated like some kind of literature. "This new section provides easy access to historical patent and exclusivity data for FDA-approved drugs," it says. They're typically just evergreening their patents in order to ensure drug exclusivity persists (perpetuity). It's neither beneficial to innovation nor is this healthy for patients.

Lately we have been writing a great deal about how patents get granted on software owing to a bunch of hype and/or buzzwords. Yet more bunk patents, for example, came from Walmart (it labels some "Blockchain"). Days ago, based on media reports [1, 2, 3], Walmart was shown to be riding the "VR" wave, exploiting buzz when a patent (or application) at hand has absolutely nothing to do with VR innovation/s but merely utilisation thereof from the software side. Here is what Matthew Boyle wrote about it:

The world’s biggest retailer wants to find out, according to filings with the U.S. Patent and Trademark Office.

The company has applied for two patents that detail a “virtual show room” and fulfillment system that would connect shoppers clad in VR headsets and sensor-packed gloves to a three-dimensional representation of a Walmart store. Customers could wander digital aisles from home and “grab” items, which would be immediately picked and shipped from a fully automated distribution center.


The supposed invention involves no improvement to the hardware; it's ridiculous and it's what we have come to expect.

Earlier today Patent Docs mentioned a "Webinar on Blockchain and IP," once again invoking that hype about blockchains, which most lawyers are unable to even explain. "Blockchain"- and "Bitcoin"-washing have become popular because they can make everything sound novel and cutting-edge. It's especially necessary in the US, unlike China for example. Anything goes in China, including software patents, because SIPO -- to the chagrin of WIPO -- doesn't give a damn about patent quality. Shouldn't the US care more? Coinbase is now attempting to get a US patent on a "new bitcoin payment system" [1, 2, 3, 4, 5, 6, 7], relying perhaps on the examiners not understanding that it's pure software and thus not patent-eligible. Can the lawyers find a way to manipulate/fool the examiner? That's perfectly possible and they can retry until they get the 'right' examiner.

Days ago in Mondaq and in Lexology we saw this new article from Aird & Berlis LLP | Aird & McBurney LP's Tony Sabeta. He starts with a Big Lie, insinuating that "blockchain applications are patent-eligible" even though they're not. They're software patents. Bunk, waste of paper. They may eventually get granted, but no high court would tolerate these. The USPTO advertises and brags about these, which actually says a lot about the USPTO and its attitude. To quote Sabeta:

As a patent practitioner, one of the questions I often get asked is whether distributed ledger technology (DLT), such as blockchain, is patentable. I naturally respond in the affirmative (with some qualifiers of course), and inevitably there is a deluge of follow-up questions and statements such as: “That can’t be! Blockchain is just software, and isn’t it nearly impossible to get patents for software these days? or “This technology has been around for almost 10 years, there is nothing new to patent here,” and so forth.


It's not even about novelty; it's about it being an abstract concept and therefore patent-ineligible.

We live in crazy times, however, so to examiners who are rewarded for granting more patents rules will be convenient to bend. That's how we ended up with so many patents on algorithms, life, and nature (even though the rules forbade all of them). Over at Watchtroll two days ago Ted Mathias, Stacie Ropka, and Rebecca Clegg published "The CRISPR Tug of War" -- yet another one of those promotions of 'life monopolies' (or monopolies on life itself). That was around the same time Merck was awarded a CRISPR patent in Australia:

Merck has been awarded a patent for CRISPR nickases by the Australian Patent Office.

The application covers a foundational CRISPR strategy in which two CRISPR nickases are targeted to a common gene target and work together by nicking or cleaving opposite strands of chromosomal sequence to create a double-stranded break.

Merck said in a statement that these paired nickases will “improve CRISPR’s ability to fix diseased genes while not affecting healthy ones”.

In addition to allowing a patent application on paired nickases, the Australian Patent Office also announced the formal grant of Merck’s 2017 CRISPR integration patent, following withdrawal of four independent, anonymously filed oppositions.


Australia grants such ridiculous patents on life because of CSIRO and the influence of lawyers. There's an ongoing fight over the matter at the EPO because the authorities say no to such patents whereas EPO management actively flouts the rules. As it always does...

Recent Techrights' Posts

Microsoft: Our "Goodwill" Gained Over 51 Billion Dollars in the Past Nine Months Alone, Now "Worth" as Much as All Our Physical Assets (Property and Equipment)
The makeup of a Ponzi scheme where the balance sheet has immaterial nonsense
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
How to get selected for Outreachy internships
Reprinted with permission from disguised.work
 
Lucas Kanashiro & Debian/Canonical/Ubuntu female GSoC intern relationship
Reprinted with permission from disguised.work
Pranav Jain & Debian, DebConf, unfair rent boy rumors
Reprinted with permission from disguised.work
Links 27/04/2024: Kaiser Gave Patients' Data to Microsoft, "Microsoft Lost ‘Dream Job’ Status"
Links for the day
Gemini Links 27/04/2024: Sunrise Photos and Slow Productivity
Links for the day
Almost 2,700 New Posts Since Upgrading to Static Site 7 Months Ago, Still Getting More Productive Over Time
We've come a long way since last autumn
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 26, 2024
IRC logs for Friday, April 26, 2024
Overpaid lawyer & Debian miss WIPO deadline
Reprinted with permission from disguised.work
Brian Gupta & Debian: WIPO claim botched, suspended
Reprinted with permission from disguised.work
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day