Bonum Certa Men Certa

In an Age of Necessary Patent Reform and Permanent Uncertainty for Software Patents the Patent Microcosm Looks for Workarounds and Spin

Source: "Patent Office head to keep spot in Trump administration" (report from yesterday)

Michelle Lee on software patents and trolls



Summary: Commentary on the status quo in the Michelle Lee era and some examples of bias from the patent microcosm, as well as news regarding the NFL getting sued by the Kudelski Group

THE PAST couple of years have been very encouraging for patent reformers. Reformist transitions are occurring (except in the EPO and SIPO) which limit patent scope in lieu with public interest and those who make a living purely out of patents aren't liking any of it. It has gotten so bad that they now insult the USPTO's Director, insult examiners, and even insult judges. What next? Will racist attack too become prevalent?



"Nothing seems to be going in favour of the patent microcosm these days, especially not high-profile cases."National Law Review, a large publication which covers patents among many other things, has this new list of "Intellectual Property Cases to Watch in 2017". Nothing in the list challenges Alice itself (a de facto ban on many is not most software patents) and number 2 in the list can be the end to most patent trolls. 2017 should be interesting, we believe, unless Trump makes a mess of it with SCOTUS nominations/appointments which go beyond filling Scalia's empty seat (swapping one Republican bigot with another).

Watchtroll, still trying to recover from the 'horrible' news which is more of the same (patent reform), now complains about ۤ 101 (related to Alice) broadening its scope to challenge yet more patents. Nothing seems to be going in favour of the patent microcosm these days, especially not high-profile cases. They know it and they desperately cherry-pick cases to make it look as though they are gaining ground.

"We hope that Director Lee will add some more judges to the PTAB."Computer vision is my professional field of research. I used to write a lot more about patents in this area and why they oughtn't be granted (it's all reducible to mathematics and can be conceptualised with pen and paper). Vision patents are generally patents that oughtn't be granted, yet the USPTO has just let another one slip in. Someone should petition PTAB for an IPR (inter partes review), but PTAB is already overworked and arguably understaffed. We hope that Director Lee will add some more judges to the PTAB. This would help improve the image and value of US patents.

Writing about SCOTUS, Minter Ellison, a law firm, recalls the Alice moment, not mesmorising but mourning. "Approximately two years ago," it says, "the US Supreme court in the Alice decision considered the in principle patentability of software patents. Since then, gaining US software patents has been very difficult. In 2016, the United States Court of Appeals for the Federal Circuit (the ‘Court’) has considered numerous appeals from district courts relating to patentable subject matter. This blog post discusses the two-step test from the Alice decision and how the test was applied by the Court in 2016, the developing trends for patentable subject matter in the US as it relates to software patents and the take-away messages for 2017."

As can be expected from a firm that profits from software patenting, tips are offered therein for dodging or side-stepping the rules, thus sneaking software patents past examiners (until or unless courts/PTAB throw these way). Here is a similar new guide for getting business method patents past examiners, based on the latest eligibility guidelines:

About a week before the holidays, the U.S. Patent and Trademark Office quietly published a trio of new subject matter eligibility examples directed to the abstract idea exception to patentability. These are the latest in a series of examples provided by the USPTO to its examining corps, the series including previous examples published in December 2014, January 2015, and July 2015 (other USPTO publications include example claims directed to the law of nature and natural phenomenon exceptions). While the focus of this guidance is to educate examiners about how to determine whether pending claims are valid under 35 U.S.C. ۤ 101, practitioners and patentees will find the examples to be helpful when considering how to draft and amend claims.


A lawyers' portal, one which is even more overt, does very little to hide its bias as it gives tips for promoting and defending software patents in an age when they're dying. "There are key concepts," it says, "but no bright line rules on software patents. The best approach is to follow the common law, comparing and contrasting prior patent cases."

The problem is, they're typically cherry-picking only the cases which suit their agenda. It leads to bad advice, e.g. to clients or to readers of their so-called 'analyses'. Trying to improve one's chance of success is not in itself a problem; that's what lawyers do. Some new advice like "importance of a prior art search" is better because it's not about misleading examiners (or judges) but about ensuring one's idea is really innovative and thus eligible.

"Software patents are a pain in the behind to a lot of producing (or productive) companies out there."Sadly, not only patent law firms encourage the 'tricking' of examiners. IBM is doing that too (the former Director of the USPTO in fact came from IBM and is still being paid by IBM) and the corporate media fails to critically assess IBM's aggressive behaviour, to the point where even weeks later IBM is celebrated as some kind of champion, simply because it paints software patents as "cloud" (buzzword) or AI (an older buzzword).

Software patents are a pain in the behind to a lot of producing (or productive) companies out there. IBM now attacks a lot of legitimate companies, including medium-sized ones. According to the latest news, even the NFL has found itself sued by such patents (plenty of press coverage this week, e.g. [1, 2, 3, 4, 5, 6, 7, 8]). Lawsuits are a symptom of disagreement over patents. They are far from the ideal outcome and they are desirable to nobody except patent lawyers.

Recent Techrights' Posts

Harassment Against My Wife Continues
Drug addict versus family of Techrights authors
 
[Video] Why Microsoft is by Far the Biggest Foe of Computer Security (Clue: It Profits From Security Failings)
Microsoft is infiltrating policy-making bodies, ensuring real security is never pursued
Debian 'Cabal' (via SPI) Tried to Silence or 'Cancel' Daniel Pocock at DNS Level. It Didn't Work. It Backfired as the Material Received Even More Visibility.
know the truth about modern slavery
Lucas Nussbaum & Debian attempted exploit of OVH Hosting insider
Reprinted with permission from disguised.work
Software in the Public Interest (SPI) is Not a Friend of Freedom
We'll shortly reproduce two older articles from disguised.work
Syria, John Lennon & Debian WIPO panel appointed
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 28, 2024
IRC logs for Sunday, April 28, 2024
[Video] GNU and Linux Everywhere (Except by Name)
In a sense, Linux already has over 50% of the world's "OS" market
[Video] Canonical Isn't (No Longer) Serious About Making GNU/Linux Succeed in Desktops/Laptops
Some of the notorious (or "controversial") policies of Canonical have been covered here for years
[Video] What We've Learned About Debian From Emeritus Debian Developer Daniel Pocock
pressure had been put on us (by Debian people and their employer/s) and as a result we did not republish Debian material for a number of years
Bruce Perens & Debian public domain trademark promise
Reprinted with permission from disguised.work
Links 28/04/2024: Shareholders Worry "AI" Hype Brings No Income, Money Down the Drain
Links for the day
Lawyer won't lie for Molly de Blanc & Chris Lamb (mollamby)
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, April 27, 2024
IRC logs for Saturday, April 27, 2024
Links 27/04/2024: Spying Under Fire, Intel in Trouble Again
Links for the day
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
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
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
FSFE (Ja, Das Gulag Deutschland) Has Lost Its Tongue
Articles/month
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