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08.19.18

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

Posted in America, Australia, Patents at 6:45 pm by Dr. Roy Schestowitz

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…

Alice/35 U.S.C. § 101 and PTAB Are Here to Stay and Even Their Critics (Patent Maximalists) Have Come to Accept That

Posted in America, Law, Patents at 5:31 pm by Dr. Roy Schestowitz

Capitol building

Summary: Taking stock of the latest PTAB news and rants; the latter has become scarce because efforts to undermine PTAB have all failed

THE recent changes at the USPTO were relatively minor. Guidelines have barely changed, the chief judge of the Patent Trial and Appeal Board (PTAB) is merely swapping seats, and the courts continue to rule pretty consistently on patent matters. There’s no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. § 101, frequently enforced by PTAB, renders a lot of software patents obsolete. The Federal Circuit (CAFC) affirms.

“There’s no real room for profound change and this, in a strange sort of way, is a good thing because Alice/35 U.S.C. § 101, frequently enforced by PTAB, renders a lot of software patents obsolete.”Over the past week we’ve been patiently watching new cases and new decisions. We’re also still watching events like this one about PTAB; a few months ago there were many anti-PTAB events, but Oil States more or less ended that. PTAB is here to stay and patent maximalists are slowly learning to accept that.

“SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer).”What about 35 U.S.C. § 101? It hasn’t really changed. There are talks about amending guidelines, but nothing substantial has changed and SCOTUS refuses to revisit the matter. SCOTUS is instead looking into matters such as damage calculations and litigation venue, along with PTAB itself (two decisions about it earlier this summer). 3 days ago San Antonio Business Journal wrote an update about the USAA case, wherein the underlying patent claims are currently being disputed. How typical. How depressing to patent maximalists this must be…

Steve Brachmann wrote about BSG Tech LLC v. BuySeasons, Inc. — a case that we mentioned some days ago because it deals with software patents and Section 101 at a high level. Watchtroll also seems rather befuddled and confused by the fact that CAFC doesn’t give a damn about the Berkheimer hype and still throws away/tosses out any such lousy software patents.

“On Wednesday, August 15th,” Brachmann wrote, “the Court of Appeals for the Federal Circuit issued a precedential decision in BSG Tech LLC v. BuySeasons, Inc. which upheld a decision by the district court to invalidate patent claims owned by BSG Tech as patent-ineligible under 35 U.S.C. § 101. The Federal Circuit panel of Circuit Judges Jimmie Reyna, Evan Wallach and Todd Hughes found that the district court correctly determined that patent claim asserted by BSG Tech were invalid as abstract ideas lacking any inventive step under the Alice/Mayo framework.”

Well, get used to it.

Knobbe Martens (a law firm, not a person) soon wrote about it as well. A bunch of lawyers said this:

Under step one of Alice, the Federal Circuit agreed with the district court that the asserted claims were directed to the abstract idea of considering historical usage information while inputting data. The Federal Circuit found that this was not a method “necessarily rooted in computer technology in order to overcome a problem specifically arising in the realm of” wide access databases. DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245, 1257 (Fed. Cir. 2014). Further, the Federal Circuit found that the claims were not saved from abstraction merely because they require a specific database structure that is more specific than a generic computer. Also, the Federal Circuit stated that the claims did not recite any improvement to the way in which databases store or organize information.

CAFC on PTAB inter partes reviews (IPRs) has truly transformed the way examiners operate; they think twice before granting software patents and we increasing read reports about rejections. Here’s a new CAFC decision regarding IPRs:

The US Court of Appeals for the Federal Circuit yesterday ruled that an inter partes review (IPR) filing is still subject to a time limitation even if a previous patent infringement claim has been dismissed.

In doing so, the Federal Circuit sided with Click-to-Call Technologies (CTC) and overturned a previous decision by the Patent Trial and Appeal Board (PTAB).

According to section 315(b) of 35 USC, an IPR petition cannot be instituted if it is filed more than one year after the petitioner was served with a patent infringement complaint.

A blog post by Dennis Crouch also remarked on this:

In an unusual en banc footnote, the Federal Circuit has ruled that the litigation time-bar found in 35 U.S.C. § 315(b) applies even in cases where the plaintiff-patentee voluntarily dismisses the lawsuit without prejudice. Click-to-Call Tech., LP v. Ingenio, Inc. and Iancu (Fed. Cir. 2018).

“Court says the PTAB was wrong to decide that voluntary dismissal without prejudice of a civil action in which the complaint was served “does not trigger” the one-year time bar under Section 315(b),” Michael Loney wrote.

IPR proceedings will continue unabated and entities such as Unified Patents will file IPRs as they see fit.

Watchtroll posted a new example of it earlier today. “Plano, TX-based patent owner American Vehicular Sciences LLC recently filed a petition for rehearing en banc with the Court of Appeals for the Federal Circuit. The petition relates to its appeal of inter partes review (IPR) proceedings conducted at the Patent Trial and Appeal Board (PTAB), which initiated as the result of a petition filed by Unified Patents,” Watchtroll said.

American Vehicular Sciences, as we noted back in June, is part of a Microsoft-connected patent troll. Will it be disarmed?

Certainly we shall see PTAB-bashing in the future, but the frequency of that has greatly diminished. Here’s Anticipat on Section 101 and PTAB:

As reported in today’s recap email, in Ex Parte GELFAND et al (Aug. 2, 2018), the Board reversed a lack of utility rejection. This continues a longstanding trend of the Board frequently reversing such rejections.

This is nonsense, there’s no such trend. Anticipat is a malicious propaganda site against Section 101 and PTAB, just like Bilski Blog and Watchtroll, IAM etc. There has barely been, at best, a minuscule if not negligible difference and that too can be explained differently.

There are still some PTAB-hostile events on the way; earlier today Patent Docs advertised webinars of the patent microcosm on “PTAB Proceedings on Bio/Pharma Patents”, the Intellectual Property Owners Association (IPO) on “Post-Grant Proceedings” and the scavengers from the U.S. Chamber of Commerce (malicious lobby group) lobbying lawmakers on patents:

The U.S. Chamber of Commerce Global Innovation Policy Center (GIPC) and the South Dade Chamber of Commerce and the Glen Ellyn, Lombard, Western DuPage, and Wheaton Chambers of Commerce will host two intellectual property and innovation business roundtables in Florida and Illinois

Being from the Chamber of Commerce, it’s obvious whose agenda that will advance.

Patent Docs also advertised more benign webinars such as this, but the site as a whole has been full of PTAB-bashing. Their bias is impossible to hide. Then again, their frustration too has become impossible to hide.

Patent Trolls Roundup: Conversant Wireless Licensing (Formerly Core Wireless) and Blackbird ‘Technologies’ Still Prey on Real Companies

Posted in America, Patents at 1:01 pm by Dr. Roy Schestowitz

Conversant is armed by Microsoft

Cute adorable rodent

Summary: A quick recap of recent decisions and motions, which serve to show that patent trolls can be beaten, avoided, and sometimes even ‘disarmed’

THE latest from familiar patent trolls may or may not suggest a slowdown. We generally don’t hear about them as much as we used to; litigation numbers have declined and some are exploring China for alternative ‘opportunities’ (to sue). The IAM sponsors, the Microsoft-armed trolls and this whole ‘industry’ of patent blackmail is unable to win many cases in the United States; USPTO-granted abstract patents or patents on essential/industry standards, i.e. things one must implement merely to be in compliance/compatibility with everyone else, have become harder to enforce. Courts are more restrictive and they have become more rational (in lieu with public interest).

“…any presence or involvement in places like Eastern Texas (e.g. a Google datacentre, or even a third party, as recently tested in court) would be a major legal liability.”The pro-trolls (who writes for their Web sites) Mr. Gross is attacking Lemley again (as usual), blaming Google (as they all do nowadays). “Its everywhere,” he wrote, “GOOG’s outside litigation attorney (Lemley) routinely files materials to Congress pretending to be an objective non-partisan “academic” representing the public interest; he signs off/uses his Professorship as a facade…”

This was said in response to this old tweet about the Google Transparency Project only a short time after Lemley wrote that the “Federal Circuit holds that failing to disclose a patent to a standards body may render that patent unenforceable.”

It actually links to this document (PDF embedded in page, regarding Core Wireless Licensing v Apple Inc.). It’s about Google’s rival, Apple, on the receiving end. What we have here is an important Federal Circuit ruling that may mean the demise of a Microsoft-connected troll. What we have not found yet is press coverage about it. It is not so new a case, but it’s still worth exploring the broader ramifications of it.

There is another interesting twist in a lower US court. The Docket Navigator looked at RegenLab USA LLC v. Estar Technologies Ltd. et al and said that the “court denied one defendant’s motion to dismiss for improper venue because defendant had a regular and established place of business through an employee’s home office in the forum.” This is why any presence or involvement in places like Eastern Texas (e.g. a Google datacentre, or even a third party, as recently tested in court) would be a major legal liability. It is a point we keep repeating and stressing, knowing that it’s not often recognised and said in the press. In post-TC Heartland (SCOTUS, 2017) patent litigation this may seem rather trivial/obvious.

Mike Masnick (TechDirt founder) wrote about Bitmovin’s defense from the patent troll Blackbird ‘Technologies’, known more recently (especially last year) for its actions against Internet companies. To quote:

A few years back, e-commerce company Newegg decided to take something of a scorched earth approach to all of the various patent trolls that came after it: it would never settle with a patent troll. While many trolls rely on the fact that it’s cheaper to settle than to fight in court (even if you win), Newegg did the longer term calculation, and recognized that even if it cost more to defeat trolls in court, by being very public with its stance in fighting it would likely scare off trolls from continuing to sue the company. It took a few years, but the strategy mostly worked. Trolls have mostly learned to steer clear of Newegg.

Last year, Cloudflare decided to up the ante a bit on such a strategy. After a patent troll went after it, Cloudflare didn’t just promise to fight back, it promised to effectively burn the patent troll into the ground. It set up a bounty looking for prior art on every patent held by that patent troll (Blackbird Technologies), and also filed ethics complaints against the lawyers who ran the company, arguing that they were pretending not to practice law when they clearly were. That strategy has resulted in an easy win over Blackbird in court while various Blackbird patents are being challenged.

It appears that approach is inspiring other companies as well. Streaming infrastructure company Bitmovin’s General Counsel Ken Carter (who, notably, used to work at Cloudflare) put up a blog post describing just how it dealt with a recent patent troll. After first pointing out that patents can be important, and noting that the company itself holds some patents, the post reminds everyone that it’s possible to abuse the patent system.

Christine Hall wrote: “The takeaway? Don’t settle with patent trolls. Hit ‘em with all ya got..”

Well, if one can afford it. The problem is that trolls (copyright or patent trolls) can pursue those whom they know cannot afford a day in court, extracting from them so-called ‘protection’ money instead; that’s why the ultimate solution would be complete invalidation of such poor, problematic patents.

08.18.18

David Ruschke, the PTAB’s Chief, is Moving So the Patent Maximalists Push Their Anti-PTAB Agenda

Posted in America, Patents at 2:53 pm by Dr. Roy Schestowitz

Scott Graham [1, 2, 3, 4] heard from PTAB practitioners that Ruschke is moving

A moving box

Summary: As the chief judge of the Patent Trial and Appeal Board (PTAB) moves elsewhere at the USPTO there are those who hope that a replacement will undo PTAB inter partes reviews (IPRs), which generally improve the quality of granted patents

Michael Loney was one of the first people to report that Ruschke from PTAB is moving on (or sideways, or upwards). His background, which involves enduring attacks and abuse from patent maximalists, may not have suited his character. So here’s what’s coming next in his career:

David Ruschke, who has been Patent Trial and Appeal Board chief judge since 2016, has been given a role intended to improve the free flow between the Patents and PTAB business unites at the USPTO

It didn’t take long for the patent trolls’ lobby, IAM, to pressure Iancu to marginalise PTAB after Ruschke’s departure (or announcement thereof). IAM is not even pretending to respect PTAB; it’s a hostile trolls-funded think tank and under the loaded headline “Exit of PTAB chief judge gives Iancu further opportunity to put his own imprint on agency leadership” it wrote:

The news that David Ruschke, chief judge of the Patent Trial and Appeal Board (PTAB), is leaving his role to take up a new position at the USPTO took much of the DC patent community by surprise. After the move was disclosed in a town hall meeting on Tuesday and a memo from Director Iancu was circulated internally, PTAB practitioners started to pick up on events and by that evening it had hit the headlines, with Scott Graham over at law.com the first to break the story.

Scott Graham is another one of those patent maximalists, fed by other patent maximalists as his sourced (as we noted here before). With an imminent departure of a good and thick-skinned judge like Ruschke we need to watch closely who’s suggested as a replacement (and who by).

If David Chiles Turned the USPTO Into a ‘Microsoft Shop’ That Might Explain Three Days (or More) of Outages

Posted in America, Patents at 2:00 pm by Dr. Roy Schestowitz

David Chiles is blamed by some, which gives him yet more unwanted attention [1, 2]

David Chiles

Summary: The U.S. Patent and Trademark Office (USPTO) is having profound technical issues; some already point their fingers at David Chiles, alleged to have been hired/promoted for the wrong reasons

THE INTERNAL affairs of the USPTO have vexed some insiders, who said that the CIO was hired/promoted for reasons associated with nepotism (people hired for family connections, not for skills). A few days ago we wrote about how the USPTO planned to penalise non-Microsoft customers, in effect favouring proprietary Microsoft formats over industry standards or open standards (which Microsoft obviously opposes).

“That’s far too much money and it is reminiscent of what goes on at the EPO where Battistelli’s companion is still the CIO.”Moments ago we accessed the official USPTO Web site only to be greeted with a pop-up that says: “A number of USPTO online business systems remain offline. We understand the impact to our users and the frustrations that come from having such systems down unexpectedly. The USPTO is working hard to resolve the issue and we will continue to provide updates to you. The latest information on alternative methods of filing and payment and our systems status can always be found on our website. More updates will be forthcoming.”

“Day Three of USPTO E-Filing Outages” is what Dennis Crouch called it a couple of days ago, so we assume that now it’s the fifth day in a row. “Note that the system failures do not automatically serve as any excuse for filing delays,” Crouch wrote. “The Office of the Chief Information Officer (OCIO) is currently led by Acting Chief David Chiles and has a budget of $600 million.”

That’s far too much money and it is reminiscent of what goes on at the EPO where Battistelli's companion is still the CIO.

08.16.18

USPTO Craziness: Changing Rules to Punish PTAB Petitioners and Reward Microsoft for Corruption at ISO

Posted in America, ISO, Microsoft, Open XML, Patents at 7:22 am by Dr. Roy Schestowitz

Mr. Iancu and his colleagues do not appear to understand (or care) that they are rewarding Microsoft for epic corruption at ISO and elsewhere

No-OOXML

Summary: The US patent office proposes charging/imposing on applicants that are not customers of Microsoft a penalty; there’s also an overtly and blatantly malicious move whose purpose is to discourage petitions against wrongly-granted (by the USPTO) patents

THE previous post spoke about how the Federal Circuit rejects software patents, as does the Patent Trial and Appeal Board (PTAB). An inter partes review (IPR) is almost guaranteed to thwart any software patent if it is applied to one (not a cheap process, but a lot more affordable than a court battle, which can only be initiated by patent holders).

“Iancu was a pick of the notoriously corrupt Trump, whose firm had previously worked for Trump. Coincidence?”It is no secret that Director Iancu wrote articles in support of software patents and software patents are not valid anymore, based on what the SCOTUS has decided. This means that the person whom Trump put in charge of the patent office in inherently is disagreement with patent courts. An untenable situation? Iancu was a pick of the notoriously corrupt Trump, whose firm had previously worked for Trump. Coincidence?

Either way, everything we have seen so far confirms our worst fears — that Iancu would work for the patent microcosm rather than for science and technology. The patent system was conceived to serve that latter group, not a bunch of lawyers, but things have changed since conception and nowadays the Office is adding yet more fees that make expensive lawyers a must to some. With prohibitive costs, too (maybe $200 per hour). Punishing poor companies, obviously.

Docket Navigator has been covering quite a few 35 U.S.C. § 285 cases/motions lately, with some being successful, i.e. when some troll or bully made bogus claims it was punished financially for it. Those are the courts doing so, not the Office. In Phigenix, Inc. v Genentech, Inc. (based on this latest Docket Report), the court ended up considering the argument regarding frivolous patent lawsuits. Will the court make it more expensive to the abuser? That remains to be seen. “Following summary judgment,” Docket Navigator wrote, “the court granted defendant’s motion to join plaintiff’s founder/inventor as a necessary party and pursue attorney fees against him under 35 U.S.C. § 285.”

Upcoming changes at the USPTO do not look promising however. For at least three reasons.

Firstly, the patent microcosm is being shielded from competition. “It is no secret to anyone in the industry; the unauthorized practice of law is rampant, and OED does nothing to stop it,” Gene Quinn (Watchtroll) said yesterday. Terms like “unauthorized practice of law” (used both in the body and headline of Watchtroll) imply that it’s illegal to represent oneself too. The patent and litigation ‘industries’ want a monopoly on this activity. A form of corruption surely? Consider Iancu’s professional background and how he might view this.

Secondly, this Trump appointee would have loved to abolish PTAB and destroy patent quality, but SCOTUS and CAFC are not allowing that to happen. He’ll still try though. He might even ignore Oil States and try to just price IPRs out of reach. Here’s what Kevin E. Noonan, a patent maximalist, wrote a couple of days ago

On August 8th, the U.S. Patent and Trademark Office issued revisions to its Patent Trial and Appeal Board (PTAB) Guide (see “Trial Practice Guide Update”), first promulgated in 2012 as part of the Office’s implementation of inter partes review (IPR), post-grant review (PGR), and covered business methods review (CBM) proceedings established under the Leahy-Smith America Invents Act (AIA). As discussed in an accompanying memorandum from USPTO Director Iancu, this update is part of the Office’s plan to issue updates periodically, on section-by-section, rolling basis; the Director anticipates further future updates “to take into account feedback received from stakeholders, changes in controlling precedent or applicable regulations, or the further refinement of the Board’s practices over time.”

In addition to being a resource for petitioners and patent owners, the Guide has as its purpose “to encourage consistency of procedures among panels of the Board,” akin to the role of the MPEP with examiners. As with the practice of having “expanded panels” to promote consistency in decisions, this function further limits the extent to which APJ’s activities are consistent with an independent adjudicatory arm of the USPTO.

It’s just a pretext for price hikes, as Michael Loney noted in a couple of articles. The first one spoke of changes to the process:

AIA Trial Practice Guide changes attracting the most attention are patent owners getting sur-replies and the opportunity to present a brief sur-rebuttal at the oral hearing, giving them the final word in PTAB proceedings

That should not take long, should it?

Thirdly, and finally, there is the most ridiculous thing of all. The USPTO will apparently punish people for using non-Microsoft binary (OOXML) format. How is this not corruption at USPTO? Microsoft used corruption to impose OOXML on the world, now USPTO punishes those who use standards! OOXML is not really a standard; it has binary blobs in it and Microsoft bribed officials and delegates for it. Here are the details:

The USPTO is seeking across-the-board fee increases, as well as a new fee surcharge for filing in a non-DOCX format and an annual active patent practitioner fee

So they are making it more expensive yet again (25%) in an effort to suppress IPRs. Battistelli used the same tricks as Iancu. He kept raising the costs of appeals (against bogus patents) in an effort to reduce patent quality and hide all this.

Iancu’s proposed fee hikes for PTAB IPRs obviously harm small businesses the most. Who benefits? Microsoft. Who else benefits? Lawyers. But that pretty much sums up what this leadership became, even in direct defiance of US courts as high as the Supreme Court. We hope that these proposals will be imminently challenged.

The Demise of US Software Patents Continues at the Federal Circuit

Posted in America, Courtroom, Patents at 6:12 am by Dr. Roy Schestowitz

Courts decline and the judiciary rejects such patents, leading to a decline in such patent grants as well

A decline

Summary: Software patents are rotting away in the United States; it remains to be seen when the U.S. Patent and Trademark Office (USPTO) will truly/fully honour 35 U.S.C. § 101 and stop granting such patents

THE situation in 2018 is probably worse for software patents than it has ever been (except before such patents were introduced, a few decades after software itself had emerged). The Federal Circuit continues to affirm inter partes reviews (IPRs) undertaken by the Patent Trial and Appeal Board (PTAB) at the USPTO in (re)assessing software patents, so why does the USPTO still grant any such patents? That merely harms confidence is US patents and collectively reduces their value.

“That merely harms confidence is US patents and collectively reduces their value.”As we often note here, the USPTO continues granting far too many abstract patents because of tricks like calling these “apparatus” (examples from yesterday) and buzzwords like “AI”. In spite of knowing courts would void these, examiners let them be. See this day-old survey of newly-granted patents; many of them sound very abstract and here's why they're still being granted. There’s more money in granting than in rejecting, but what would be the fate of the office if it kept granting patents only for them to be rendered invalid later?

“it seems like CAFC is pretty consistent in such rulings and it’s therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy.”In the United States’ patent courts — not Office (PTO) — software patents are pretty much dead, but it’s expensive to show this. Invalidation rates are already very high (if it gets to district courts and/or PTAB) and if one is wealthy enough, then CAFC offers even higher invalidation rates for software patents. It’s about access to justice. All about money. It’s just better for the rich, deep-pocketed firms. That in its own right is a profound issue.

In any case, there’s some good news this week as CAFC decides to throw another bunch of software patents by the wayside. Dennis Crouch has mentioned a Microsoft case, Enfish, in relation to this. The patents are on database software (they’re inherently a kind of software and the same goes for blockchains) and as one might expect these too are bunk. CAFC agrees as usual. Quoting Crouch:

On appeal here, the Federal Circuit affirms a lower court ruling that the claims of BSG’s three asserted patents are invalid as ineligible under 35 U..S.C. § 101. U.S. Patent Nos. 6,035,294, 6,243,699, and 6,195,652.

The claims relate to indexing a database according to “relative historical usage information.” Thus, in an automobile database with a “model” parameter, the system could display index by the popularity of the various models. In the claims, the popularity is measured by prior users of the system. Note here – the claims don’t technically require indexing by the frequency, only being able to access that information.

[...]

Enfish was a similar case — also involving a self-referential database structure. That case, the court determined that the focus was on database function and machine efficiency. Here, on the other hand, the historical information is stored just like any other data. “The claims do not recite any improvement to the way in which such databases store or organize information analogous to the self-referential table in Enfish or the adaptable memory caches in Visual Memory.”

This is fantastic news for software developers who wish to develop in peace without nuisance patent lawsuits.

Patent maximalist [1, 2] Matthew Bultman (Law360) wrote about these patents being invalidated at around the same time. To quote:

The Federal Circuit on Wednesday ruled three indexing software patents that BuySeasons Inc. was accused of infringing are invalid for claiming nothing more than an abstract idea, upholding a ruling from a judge in the Eastern District of Texas.

The appeals court, in a precedential opinion, found U.S. District Judge Robert Schroeder III correctly granted BuySeasons summary judgment that each of the asserted claims in Plano, Texas-based BSG Tech LLC’s patents are invalid.

They tried Texas, as usual.

Bultman’s Law360 colleague, RJ Vogt, wrote about another case, one filed by Mirror Worlds Technologies LLC, probably not even a real company based on its registration. To quote Law360‘s article:

A New York federal judge has ruled that Mirror Worlds Technologies LLC failed to show that Facebook Inc. infringed three of its patents covering digital data organization technology, finding that the social media giant’s news feed and other features did not use a “main stream” as described by the patents.

The patents, issued between 1999 and 2012, protect the “Scopeware” system for file sharing, which organizes emails, documents, calendar items, software and other data into searchable chronological streams designed to replace traditional “desktop” folder interfaces that…

Finally, yesterday in PR Newswire (a press release by Diebold Nixdorf) CAFC was said to have voided another bogus patent granted by the USPTO:

Diebold Nixdorf (NYSE: DBD) announced today that the U.S. Court of Appeals for the Federal Circuit reversed the decision issued by the International Trade Commission (ITC) against the company in a patent dispute against Nautilus Hyosung. The Federal Circuit agreed with Diebold Nixdorf that Hyosung’s sole remaining patent in its case against the company is invalid and unenforceable. The Federal Circuit’s decision is a victory for the company, reversing the judgment of the ITC that Hyosung’s patent was valid and infringed by Diebold Nixdorf.

The patent found to be invalid, U.S. Patent No. 8,523,235, relates to certain automated teller machines (ATMs) with Diebold Nixdorf’s ActivMedia™ module. The underlying investigation at the ITC began with four patents, but Hyosung dismissed three of the patents after Diebold Nixdorf provided evidence that Hyosung had simply copied technology that had already been introduced by Diebold Nixdorf and other prominent manufacturers.

[...]

In that first ITC Investigation, the administrative law judge found that nearly all of Hyosung’s deposit automation-enabled ATMs and modules infringe two Diebold Nixdorf patents. In fact, the administrative law judge specifically noted evidence showing that “Nautilus had knowledge of Diebold’s patented technology, copied it, and encouraged its customers to use it in an infringing way.” Diebold Nixdorf intends to seek damages in a jury trial in U.S. District Court for Hyosung’s infringement.

Notice the trend. Also notice what the ITC had done before CAFC got involved.

We’ve not cherry-picking cases here; it seems like CAFC is pretty consistent in such rulings and it’s therefore unsurprising that the patent microcosm attacks CAFC and its judges. These maximalists cannot think of any other strategy.

Almost Two Months After the ILO Ruling Staff Representative Brumme is Finally Back on the Job at EPO

Posted in Europe, Patents at 5:04 am by Dr. Roy Schestowitz

A photo of Ion Brumme

Summary: Ion Brumme (above) gets his position at the EPO back, owing to the Administrative Tribunal of the International Labour Organization (ILO-AT) ruling back in July; things, however, aren’t rosy for the Office as a whole

THE EPO‘s peculiar affairs with justice go quite some while back. Things culminated in early 2015 when the EPO’s management refused to obey a Dutch court’s ruling regarding SUEPO. Aside from that, the EPO had become notorious for its kangaroo courts — a staged notion of justice (or mere ‘theatre’) as later confirmed by ILO-AT.

“Even a petition regarding patent quality needed to be made anonymous and it did not receive sufficient press coverage (not as much as it deserved anyway).”Well, belatedly (as was the case with Judge Corcoron) the EPO is complying with court rulings from ILO-AT. It is “better late than never,” the saying goes, but they had to eventually do it, even cursorily, otherwise it would count as eternal contempt of the courts.

IPPro Patents wrote about Ion Brumme, naming Aurélien Pétiaud, Michael Lund, Laurent Prunier and Elizabeth Hardon. If someone can pass to us the full message from Brumme, that would be appreciated. The article contains many fragments from it, but not the original in its entirety. To quote a couple of portions:

European Patent Office (EPO) president António Campinos must “give back the staff their voice”, according to Ion Brumme, chairman of the Staff Union of the EPO (SUEPO) Munich section.

Brumme was speaking in a message circulated to SUEPO on the day (15 August) he returned to active duty at the EPO following his dismissal two and a half years ago.

In the message Brumme revealed he had returned to the office after the International Labour Organisation (ILO) exonerated him and his colleague Malika Weaver.

Brumme specifically addressed Campinos, asking him to “stop the persecutions of union officials and staff representatives”.

“Some are still undergoing unnecessary disciplinary procedures and ILO complaints. You can put an end to this chapter. Give back the staff their voice, their pride and their dignity.”

[...]

“At present, the staff representation still has a number of staff representative casualties such as Aurélien Pétiaud, Michael Lund, Laurent Prunier and Elizabeth Hardon. One, in particular, is Laurent Prunier, who has been dismissed in The Hague. He is awaiting trial in front of the ILO.”

“I would like to ask all of you to stop supporting me financially and if you want start supporting Laurent instead. He is in a far more precarious position than me.”

It might be too late to save the Office. ILO, the European Parliament etc. failed to act on time and union-busting goes more than 3 years back. It left the staff oppressed and unable to speak. Even a petition regarding patent quality needed to be made anonymous and it did not receive sufficient press coverage (not as much as it deserved anyway). That’s how bad things became.

Oppositions at the EPO went through the roof, but some (like IAM) are trying to spin that and yesterday Managing IP (a UPC and Battistelli proponent) said:

Data published by Haseltine Lake reveals trends in European patent oppositions in 2017, as well as data on opponents, opposed patents, IPC subclasses and decisions

The rest is behind the usual paywall, which is difficult to get around. The figures presented by Haseltine Lake were cited by SUEPO in the past in relation to declining patent quality.

The EPO is making life (career-wise) difficult to departing examiners. “Trauma will ruin the health or even the family,” Brumme warned after he had been sacked by Battistelli, having to live off donations for a number of years (he has many kids to look after). Someone told us that he was very cautious and reluctant to be seen or mentioned (e.g. by Team Battistelli), especially in relation to these donations that helped sustain him and his family.

Mind this relatively new comment about privacy issues that we wrote about before, especially three years ago (more times since):

can also reassure you that there is no confidentiality at all from the EPO part!
I used to be a patent examiner in a national patent office and applied to EPO a couple of times in the past…few days after submission my boss in the national office started mobbing as he was made aware of my job application. And “coincidentally” my boss used to be a friend of EPO’s “big boss”

They are spying in order to ‘intercept’ job seekers. This means that any career at the EPO can be a career ender.

The good news is that Brumme has a source of much-needed income again; on the downside, as he points out, the EPO staff has lost its voice. Ever since the decisions from ILO-AT (late July) SUEPO has said very little. Its site has barely been active.

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