Bonum Certa Men Certa

Software as a Medical Device (SaMD) -- Like MedTech at the EPO -- Just Another Dodge for Illegitimate Software Patents

Summary: The buzzwords game carries on, as usual, on both sides of the Atlantic; abstract patents are being granted which are being spun as essential for patients

TODAY'S European Patent Office (EPO) keeps granting software patents in Europe, thanks to Brimelow, Battistelli and now António Campinos (software patents disguised as "AI" as well as "CII", "4IR", "blockchains" and so on). Similarly, the U.S. Patent and Trademark Office's (USPTO) dodges Alice (SCOTUS decision) by altering examination criteria surrounding 35 U.S.C. €§ 101 (Section 101). Examiners are bound by these; instead of following the law (e.g. EPC) they need to follow the instructions from their management, which is blatantly violating the law.

It is nowadays 'trendy' to speak about patent "quality" (or lie about it), so why can't (or won't) the USPTO do that like the EPO does? Here is what's coming soon:

Deputy Chief Judge Jackie Bonilla and Lead Judge Jessica Kaiser from the USPTO's Patent Trial and Appeal Board (PTAB) will discuss how the new pilot program will provide opportunities not only to receive feedback from the PTAB about a first motion to amend, but also to file a second motion to amend based on that feedback.


To be fair, the PTAB tackles examiners who are bypassing Section 101, as does the Federal Circuit, which deals either with lawsuits or inter partes review (IPR) appeals. PTAB, however, does not exercise full freedom under Iancu; same problem as BoA at the EPO. We have in fact just noticed (yet again) this semantic dodge that we mentioned last year [1, 2]. The latest 'trendy' loophole or cheat (for granting abstract patents) is passing off algorithms as "medical" and "device"; the EPO has been calling it "MedTech" lately and the patent extremists across the pond call it "SaMD". "What are the hurdles for patent counsel to demonstrate a software-related claim is not abstract?"

That's one of the bulletpoints, followed by: "What guidance have the courts provided in recent decisions concerning patent eligibility for software-related inventions?"

This is what Finnegan is doing right now:

Strafford will be offering a webinar entitled "Protecting Software as a Medical Device: Patents, Design Patents and Trade Secrets" on April 9, 2019 from 1:00 to 2:30 pm (EDT). Cory C. Bell, Elizabeth D. Ferrill, and Susan Y. Tull of Finnegan Henderson Farabow Garrett & Dunner will guide counsel for companies in the medical device industry on protecting software as a medical device (SaMD) and discuss the FDA rules regulating SaMD and how to leverage IP law to protect SaMD.


Those are just software patents; the EPO keeps painting these are "for SMEs" and "medical" (as in "life-saving"). We wrote about it half a dozen times this year.

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