Bonum Certa Men Certa

The Efforts to Work Around 35 U.S.C. ۤ 101 and Why IBM is So Afraid of ۤ 101

IBM's actual business has been sent to China (notably Lenovo)

Lenovo notebook



Summary: ۤ 101, which invalidates the lion's share of software patents in the US, is still the subject of most Internet debates; that's because restriction/limit on patent scope and almost nothing else really worries the patent microcosm

THE decline/demise of software patents is really hurting IBM because IBM invested/wasted a lot of its cash reserves on a pile of worthless software patents, which are basically worse than worthless. Those patents are bunk, more so after Alice.



We are not arguing that the USPTO stopped issuing software patents. It still issues them (it's just harder), but courts typically reject these. Yesterday we saw this article titled "Materialise makes software that powers 3-D printing" in which it said that "Materialise now has 165 patents for its software, manufacturing and medical device products."

How many of these allude just to software and are thus worthless? There's also an attempt to characterise software patents using all sorts of buzzwords and hype. From the past week alone: "Now Trending in Patent Examination: Cryptocurrencies and Blockchain Technology", "Filing figures suggest blockchain-related patents boom" and "Financial Services Companies Are Rushing to Patent Blockchain Solutions". Disguising software patents as "blockchain" isn't so novel a concept. The applicants or the law firms try to get examiners to say, "well... OK, I don't get it, I'm not sure what that means, so I'll grant a patent."

Here's one from the weekend: "FOSDEM 2018 blockchain devroom raises questions and discusses #Patents #Povery #Law #Energy #Diversity and #Inclusion aspects of blockchain technology."

Well, blockchain is software, so forget about patents. Sure, these get granted, but as far as we're aware, none have been tested in court (yet).

Then there's the "AI" wave, which IBM keeps riding with publicity stunts like "Watson". Nobody invented "AI" and its buzzword 'branches' (data-driven training/learning). The concepts are very old, but over time there's more computing power at hand. The corporate media really ought to stop using the "AI" hype because it is being exploited for patent propaganda, such as this from today.

There's a constant effort to work around Alice and patent software. Watchtroll, for instance, published this thing yesterday, claiming to have come up with new loopholes. It says that the USTPO "recently issued a bulletin explaining that on January 25th, a revised MPEP — Ninth edition (Revision 08.2017) of the Manual of Patent Examining Procedure (MPEP) was made available on the USPTO website."

None of this really changes anything. They're talking about semantics. So does Charles Bieneman, who days ago wrote that "CAPTCHA Patent Claims Survive Alice Challenge," albeit only at a district court (i.e. the lowest possible level). To quote:

Patent claims directed to “generating a completely automated test to tell computers and humans apart” – i.e., improvements to what you’ve seen on the Internet as “CAPTCHA” – have survived a motion to dismiss alleging patent-ineligibility under 35 USC €§ 101 and the Alice abstract idea test. Confident Technologies, Inc. v. AXS Group LLC, No. 3-17-cv-02181 (S.D. Cal. Jan. 23, 2018).


If they want to seriously debate ۤ 101, then they ought to look at higher courts, such as the Federal Circuit.

Regarding an IBM patent recently rejected under €§ 101, one troll friend wrote: "Its ]sic] Tuesday, so of course IBM has #patent application improperly rejected under €§101 at PTAB, by ignoring 90% of language and boiling them down to simply claiming "logical parsing of information" https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017008361-01-30-2018-1 …"

IBM has been losing a lot of software patents lately. PTAB invalidates them every week. "IBM is the only operating company that breaks the top-10," Patently-O wrote the other day in "Firms with the Most Registered Patent Attorneys and Agents". Well, IBM is operating less and less over time. Dan Gillmor recently called IBM “a company that basically invented patent trolling and employs platoons of patent lawyers,” having watched the company for decades.

From Patently-O:

According to these records, Finnegan has the most total practitioners while Knobbe has the most patent attorneys. IBM is the only operating company that breaks the top-10. The top 25 firms represent ~8% of all registered patent practitioners. The newest patent attorney on the list is Hallie Wimberley, a first-year associate at Reed Smith. My former firm (MBHB) is now up over 100.


Janice Mueller, writing in Twitter the other day, said: "Delicious irony that IBM now #6 on this list. They were one of the anti-software patent leaders in 1970s. Times do change."

"IBM is now the biggest lobbyist for software [patents] everywhere," I replied, "not just the US" (she agreed on that). IBM is like a troll almost. It's not there yet, but it's already feeding trolls.

Can €§ 101 put an end to most of IBM's aggression? We certainly hope so. €§ 101, based on this tweet, is still being used a lot by PTAB. Another €§ 101 tweet noted that it's not €§ 101 but €§ 103 that did the trick: "Examiner's Rejection of Philips Imaging Patent Application Claims under 101 Was Reversed by PTAB; 103 Rejection Affirmed: https://storage.googleapis.com/pbf-prod/pdfs/2018-01-23_13260533_175904.pdf …"

Charles Bieneman's colleague, Kevin Hinman, wrote about 35 U.S.C. ۤ 112. There's also this new post regarding ۤ 112 ("aspirational claiming") and regarding Crane Security Technologies, Inc. et al v Rolling Optics AB ۤ 287 got brought up in the Docket Navigator. There's more than just ۤ 101 at play; here's ۤ 287 as explained by Hunton & Williams LLP's Daniel G. Vivarelli, Christopher J. Nichols and Suzanne P. Hosseini. This too falls under AIA:

The Leahy-Smith America Invents Act (AIA) made various changes to the “marking statute” (35 U.S.C. €§ 287(a)) to permit virtual marking of patent numbers, effective for any lawsuit that was pending on or commenced after September 16, 2011. The purpose of marking an article is to provide constructive notice to the public that it is patented. More importantly, failure to mark an article can preclude the tolling of legal damages for patent infringement until effective notice is given. Ultimately, “[a patentee] is entitled to damages from the time when it either began marking its product in compliance with section 287(a) [i.e., providing constructive notice], or when it actually notified [the accused infringer] of its infringement, whichever [is] earlier.” Thus, in the event of a failure to mark, €§ 287(a) provides that “… no damages shall be recovered by a patentee in any action for infringement, except on proof that the infringer was notified of the infringement and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice.”


Yesterday (or last night) Watchtroll also wrote about €§ 121: "The safe-harbor provision of 35 U.S.C €§ 121 is a defense against a double patenting rejection. If it applied, the ‘272 and ‘195 patents could not be used as prior art against the ’471 patent."

On ۤ 102 (AIA) Gregory Sephton and Anna Schoenfelder (Kramer Levin) wrote:

Over the last few decades, the United States has been incrementally harmonizing its patent law with the rest of the world. Those efforts continued with the signing of the America Invents Act (“AIA”) in 2011. For example, the AIA created a first inventor-to-file patent system, while all but eliminating the best mode requirement. One area where we have not moved as far towards harmonization with the passing of the AIA as some initially thought is patent invalidity based on an “on sale” bar.


What's worth noting here is that the patent microcosm is typically focused on just one section, namely 101. This is what typically tackles abstract patents such as software patents. What does that obsession imply? They're mostly concerned/infatuated with patent maximalism, more so than matters like "damages". That says a lot about them.

Recent Techrights' Posts

Microsoft Layoffs and Closures Now Reported in Africa
Microsoft Uninstalls Nigeria as it closes African Development Centre (ADC) in Lagos
Over at Tux Machines...
GNU/Linux news for the past day
 
Gemini Links 09/05/2024: Being Sick Enough and End of “World of Ends“
Links for the day
Links 09/05/2024: 'Hey Hi' (AI) Bubble Implodes Some More, Microsoft Layoffs So Widespread It's Hard to Keep Track
Links for the day
Speaking of Enshittification and Freedom, We've Still Not Begun Tackling the UEFI 'Secure' Boot Mess (Preventing GNU/Linux From Even Booting!)
Microsoft continues to fly under the radar and commit competition crimes with impunity
Microsoft Has Just Confirmed Mass Layoffs in Nigeria, It Now Adds Insult to Injury With Price Hikes for Locals
It's not like Microsoft paid them good salaries
Software Enshittification or Freedom? It's not a hard choice!
Reprinted from Alexandre Oliva
Links 09/05/2024: More Microsoft Layoffs on the Way
Links for the day
Amid Microsoft Layoffs in Nigeria GNU/Linux Climbs Above 6% Market Share (Not Including ChromeOS)
Hundreds are being laid off by Microsoft in Nigeria, based on yesterday's reports
[Meme] Blame the Robots or the 'Hey Hi' (AI), It Always Works in Today's Media
Companies do not have financial troubles! They have "efficiencies"...
News Reports Say Many More Microsoft Layoffs on the Way, Rumours Say Red Hat Also Imminently a Target
Microsoft is slipping out of control
Links 09/05/2024: Diplomacy Efforts With China, AstraZeneca Stops Experimenting With COVID-19 Vaccines
Links for the day
IRC Proceedings: Wednesday, May 08, 2024
IRC logs for Wednesday, May 08, 2024
Gemini Links 09/05/2024: Registered Computer Professionals and TLS (The Long Slog)
Links for the day
Links 08/05/2024: Android Malware and "AI" Hype
Links for the day
[Meme] Technical Committee With People Who Are Not Technical
the computing/computer industry being occupied by people who lack suitable background
The Demise of Computer Science Education
Education is essential for the future; without it, whole nations will perish
[Video] Prisons for the Minds and for Tech Workers
Today's video talks about what happens to workforces (across disciplines) in recent years
[Meme] Struggling to Leave Its Nazi Past Behind
digital arson
Microsoft Declines to Talk About How Many People It Has Just Laid Off
Hours ago in IGN: "Microsoft did not say how many staff will lose their jobs, but significant layoffs are inevitable. IGN has asked Bethesda for comment. Microsoft declined to expand further when contacted by IGN."
Microsoft Windows in South America: From 99% to 87%
the latest from statCounter
It's Rather Obvious Why They Try to Silence Richard Stallman, Eben Moglen, and Daniel Pocock
Some of them already sent physically menacing messages to Daniel Pocock
IRC Network of Techrights Turns 3 (or 16 if We Count the Freenode Days)
In a few months IRC turns 36
Sedating Oneself (and Shareholders) With Fuzzy Buzzwords and Pointless Acquisitions
IBM trying to buy time
Clickfraud Spamnil Ran Out of Clickfraud Budget, Apparently
sooner or later charlatans and frauds run out of steam
Techrights Gets Under the Skin of Bad, Corrupt, Immoral People (That's a Good Thing)
Journalism is the lifeblood of democracy and free societies
Companies Do Not Shut Down Offices and Lay Off Staff en Masse (Morale and Reputation Issue) Unless They're in Deep Financial Trouble
Microsoft has been faking its financial performance for years
IRC Proceedings: Tuesday, May 07, 2024
IRC logs for Tuesday, May 07, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Video] Leaving Microsoft Behind for the Sake of National Security
Threats to "National Security" aren't some users with an Android phone but Microsoft at the root of things
GNU/Linux and ChromeOS Now at 6% in France, According to statCounter
numbers from statCounter
Gemini Links 07/05/2024: Music Spotlight and Network Knobs
Links for the day
Only Weeks After Microsoft Closed Offices and Studios It is Closing Several More (Many Layoffs, Still Deeply Debt-Saddled)
When the sad news writes itself
Bolivarian Republic Of Venezuela: GNU/Linux Reaches 9% (ChromeOS Included)
Venezuela must have lost interest in some American proprietary software when users were locked out of their own data (Adobe) and the costs could no longer be justified
[Video] Microsoft is Like Big Oil, Big Tobacco, and Other Perpetrators of Fear, Uncertainty, Doubt/Fear-mongering
openwashing, Microsoft lobbying, and Microsoft subsidies (e.g. bailouts in the form of 'defence' contracts)
Security & Debian: Urgent: New Feed URLs after another WIPO censorship
Reprinted with permission from Daniel Pocock
World Press Freedom Day: WIPO censors Debian suicide cluster
Reprinted with permission from Daniel Pocock
Gemini Links 07/05/2024: Smashing Windows (Moving to GNU/Linux) and Mastodon Time-wasting
Links for the day
Links 07/05/2024: Pulitzer for Supreme Court Expose, New Threats to Media Reported
Links for the day
Links 07/05/2024: Cheap EVs and Cloudflare Layoffs
Links for the day
Berlin police declined to investigate FSFE Nazi comparisons
Reprinted with permission from Daniel Pocock
[Meme] Communities Governed by Parasitic Elements and Girlfriends (Who Can't Understand Those Communities)
Karen Sandler and Molly de Blanc present at DebConf18
[Meme] You Can't Kill an Idea (or Facts)
Thankfully, in Western societies, there's still due process, rule of law etc. You don't just hire assassins or imprison critics
[Meme] Software in the Public Interest (SPI), Inc, Values Articles of Daniel Pocock at ~$5,000 Each (and Fails to Hide the Facts)
we are laughing, not grieving
IRC Proceedings: Monday, May 06, 2024
IRC logs for Monday, May 06, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Meme] About 2,564 Internet Sites Now at Risk of Hostile Takeover by Microsoft-Sponsored Software in the Public Interest (SPI)
WIPO censors Debian suicide cluster
Links 07/05/2024: Burning Plastic Waste, Facebook Censoring Politicians
Links for the day
Gemini Links 07/05/2024: Smashing Windows (Microsoft Losing Users to GNU/Linux), Sixty Years of BASIC
Links for the day