Posts Tagged: "software patent"

Trading Technologies Files New Request for En Banc Rehearing of ‘Ladder Tool’ Patent Decision at Federal Circuit

On August 15, Trading Technologies International, Inc. (TT) petitioned the Federal Circuit again for panel rehearing and rehearing en banc of its recent decision that found TT’s Ladder Tool invention to be subject to the USPTO’s Covered Business Method (CBM) review process and abstract under Section 101. TT argues that the PTAB did not follow the precedent of the Supreme Court or Court of Appeals for the Federal Circuit (CAFC) when reviewing its patent claims. The latest brief relates to U.S. Patent No. 7,725,382 (the ‘382 patent), while TT’s request for rehearing filed July 31 related to U.S. Patent No. 7,693,768.

Note to the Federal Circuit: Spewing Illogical Nonsense Does Not Make It True

The Federal Circuit recently reversed the District of Minnesota’s denial of summary judgment in Solutran, Inc. v. Elavon, Inc., Nos. 2019 U.S. App. LEXIS 22516 (Fed. Cir. July 30, 2019) (Before Chen, Hughes, and Stoll, Circuit Judges) (Opinion for the Court, Chen, Circuit Judge), holding that the claims at issue, which related to processing paper checks, were invalid under 35 U.S.C. § 101. The physicality of the limitations of the claims did not save the claims. See Physicality of Processing Paper Checks Does Not Save Solutran’s Claims. “[W]e have previously explained that merely reciting an abstract idea by itself in a claim—even if the idea is novel and non-obvious—is not enough to save it from ineligibility,” Judge Raymond Chen of the Federal Circuit explained for the majority. The Federal Circuit can state that proposition until every single judge is blue in the face and there will be one exhausting, inescapable truth—it is wrong! Indeed, this logical impossibility is written into so many Federal Circuit decisions one must wonder how it is possible any of the judges who believe this nonsense were ever able to achieve an acceptable score on the LSAT in order to gain admission to law school in the first place.

Chief Points from Responses to Senator Hirono’s Questions to Section 101 Panelists

Yesterday, we ran a series of excerpts from responses to Senator Thom Tillis’ (R-NC) questions for the record to panelists following the June hearings on U.S. patent eligibility law, held by the Senate Judiciary Committee’s Subcommittee on Intellectual Property. Along with Tillis and Senator Richard Blumenthal (D-CT), Senator Mazie Hirono (D-HI) also posed several questions to the participants in the 101 hearings. Hirono’s questions overall demonstrate a good faith desire to get to the heart of the problems in search of real solutions.

Examining the Unforeseen Effects of the USPTO’s New Section 112 Guidelines

When the USPTO issued its 2019 Revised Patent Subject Matter Eligibility Guidance in January of this year, it seemed as if the patentability tides had finally shifted in favor of software applicants. Far less attention and fanfare, however, was afforded to the concurrently issued and unassuming Section 112 Guidelines on examination practice for computer-related and software claims. In particular, potential pitfalls awaiting software applicants may lie unforeseen in the requirement that “[f]or a computer-implemented 112(f) claim, the specification must disclose an algorithm for performing the claimed computer function, or else the claim is indefinite.” 

Searching for Answers to the Standard Essential Patent Problem

Later this year (likely in October), the United Kingdom’s highest court will hear arguments on questions arising in two disputes concerning standard essential patents (SEPs). The UK Supreme Court has agreed to hear appeals in Unwired Planet International Ltd and another v Huawei Technologies (UK) Co Ltd and another UKSC 2018/0214 and the joined cases Huawei Technologies Co Ltd and another v Conversant Wireless Licensing SARL UKSC 2019/0041 and ZTE Corporation and another v Conversant Wireless Licensing SARL UKSC 2019/0042. The arguments are likely to focus on one question: can a national court impose a global license in SEP cases? The closely watched appeal will be the culmination of years of litigation between the parties. In the Unwired Planet case, Mr. Justice Birss of the High Court heard five trials on the validity and infringement/essentiality of Unwired Planet’s patents. In April 2017, he then gave a mammoth judgment determining what a fair, reasonable and non-discriminatory (FRAND) license would be, and setting royalty rates. Critically, he found that only a worldwide license would be FRAND in the circumstances of this case. The England and Wales Court of Appeal upheld this conclusion, in a judgment in October 2018. The Supreme Court will likely sit in a five-judge panel in a hearing that will last about two days and will be live streamed on its website (the date and panel details have not been confirmed yet). It will hand down judgment later this year or early in 2020. (Ironically, patent specialist Lord Kitchin is a member of the Supreme Court but will not be sitting in this case as it is his own judgment that is under appeal.) You might have thought that—after decades of legal debate and academic writing, dozens of judgments addressing questions such as what constitutes a FRAND license and what are reasonable royalties, and extensive discussions between technology companies—the questions around SEPs would be close to being resolved. But that is far from the case. The outcome of the UK Supreme Court hearing, for instance, will have an impact on negotiations between owners of SEP portfolios and implementers worldwide, at a time when standards are set to become critical to many more industries.

Update on 101 Rejections at the USPTO: Prospects for Computer-Related Applications Continue to Improve Post-Guidance

The Supreme Court’s 2014 decision in Alice v. CLS Bank made it significantly more difficult to obtain patents for some computer-related technologies. it is, at best, questionable whether court decisions since then have been coherent and consistent. Similarly, marked variation has been observed across art units and across post-Alice time periods as to how examiners are applying Section 101. However, the U.S. Patent and Trademark Office’s (USPTO’s) 2019 Patent Eligibility Guidance added some much-needed clarity and predictability as to how eligibility of computer-related patent applications is being assessed at the agency. Our previous research focused on the effect that Alice and Electric Power Group had on examination trends in computer-related art units. To investigate how the new 2019 USPTO eligibility guidance has affected those trends, we updated our analysis.

Trading Technologies Petitions Federal Circuit for En Banc Rehearing, Likening Its Invention to Mechanical Tool Claims

On July 31, Trading Technologies, a firm that develops software used for electronically trading derivatives, filed a combined petition for panel rehearing and rehearing en banc at the U.S. Court of Appeals for the Federal Circuit. The appellant is seeking review of the Federal Circuit’s earlier decision this May in Trading Technologies International v. IBG LLC (IBG IV), which confirmed the results of four covered business method (CBM) review proceedings at the Patent Trial and Appeal Board (PTAB) that invalidated patent claims owned by Trading Technologies as unpatentable under Section 101 of the patent law. In doing so, Trading Technologies argues that the Federal Circuit panel failed to follow both U.S. Supreme Court and Federal Circuit precedent, as well as previous Federal Circuit decisions upholding the validity of other Trading Technologies patents that share a specification with one of the invalidated patents.

Mistakes to Avoid When Filing Computer-Implemented Invention Patents at the EPO

In the final installment of my interview with three examiners at the European Patent Office (EPO), we wrap up our conversation about their approaches to examining computer implemented inventions, particularly in the field of artificial intelligence (AI), and how the EPO system compares with the U.S. patent examination system.

Software May be Abstract, But a Computer-Implemented Invention Produces a Technical Effect

In Part II of my interview with three examiners at the European Patent Office (EPO), we continue the conversation about their advice, pet peeves, and approaches to examining computer implemented inventions, particularly in the field of artificial intelligence (AI), and how the EPO system compares with the U.S. patent examination system.

How to Help an EPO Examiner and Improve Your Odds of Patenting a Computer-Implemented Invention

I recently had the opportunity to speak on the record with three examiners at the European Patent Office (EPO) about their advice, pet peeves, and approaches to examining computer implemented inventions, particularly in the field of artificial intelligence (AI), and how the EPO compares with the U.S. patent examination system. It was a wide-ranging and thoroughly enjoyable conversation with three professionals who obviously know this area very well, and who were willing to provide keen insight into ways applicants can and should improve technical disclosures to maximize the likelihood of obtaining a patent.

Antitrust Laws Are Not Enough to Kill Big Tech Monopolies

The United States is looking to antitrust law to break up big tech. Later today, for example, the House Subcommittee on Antitrust, Commercial, and Administrative Law will be meeting for a hearing on “Online Platforms and Market Power, Part 2: Innovation and Entrepreneurship.” Unfortunately, this may have become necessary, but it will not solve the problem of big tech monopolies. That can only be solved by understanding how big tech creates megamarkets and how they use shadow patent systems to regulate and perpetuate their monopolies—a power traditionally reserved for sovereigns. A patent is nothing but an exclusive right. All it can do is remove an infringer from the market. That incredible power enables startups to attract investment, commercialize new technologies, and challenge incumbents. The value of a patent is dependent on demand and market size. Since national borders establish the market size, the larger the country, the larger the market, and the more valuable a patent can become. But big tech markets are not restricted to national borders, so they get larger. Apple has 1.4 billion active devices reaching four times the 327 million population of the United States.

The Federal Circuit Must Revisit Its Imprudent Decision in Chargepoint v. SemaConnect

I recently authored an article for IPWatchdog arguing that the Federal Circuit in ChargePoint Inc. v. SemaConnect, Inc., (2018-1739) effectively overruled the new U.S. Patent and Trademark Office (USPTO) patent eligibility guidance. In my opinion, the ChargePoint decision was the very case that the Supreme Court in Alice Corp. v. CLS Bank warned would swallow all of patent law. After all, the Federal Circuit had the opportunity to take the Court’s caution seriously and interpret the abstract-based eligibility decision narrowly. It did not. Hoping for the remote chance the court will correct its error, I filed an amicus brief seeking rehearing en banc. My blunt assessment of the court’s reasoning and repercussions has been called inflammatory by SemaConnect. But it was the Supreme Court’s warning, not mine.

How Senate IP Subcommittee Witnesses on Patent Eligibility Responded to Questions from Senator Blumenthal

Through the first half of June, a series of hearings on the state of patent eligibility in America held by the Senate Intellectual Property Subcommittee rendered a variety of interesting exchanges regarding current U.S. subject matter eligibility under Section 101 relating to various important sectors of the U.S. economy. During the second hearing, Senator Richard Blumenthal (D-CT) talked to panelists regarding his concerns about patent abuses in the pharmaceutical industry. During his period of questioning, Blumenthal grilled witnesses on the subject of whether the expansion of subject matter eligibility that would result from the proposed Section 101 draft text would exacerbate issues related to “patent thicketing,” a process by which drug companies attain large patent portfolios covering various aspects of a single drug formulation. Along with Senators Thom Tillis (R-NC) and Mazie Hirono (D-HI), Senator Blumenthal entered a series of questions for the record to be answered by panelists attending the recent patent eligibility hearings. Although the questions don’t overtly single out the pharmaceutical industry, panelist answers largely indicate that this sector was on most people’s mind while responding.

It May Be Time to Abolish the Federal Circuit

I don’t really know why we need the Federal Circuit anymore. Witness the denial of en banc rehearing in Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC on July 3. This denial of rehearing provoked eight separate opinions, with no single opinion achieving more than four judges in support. With 12 judges deciding whether to rehear the case en banc that means no single opinion gained support from more than one-third of the Court. And that opinion that gained the most support was a dissenting opinion, meaning those judges wanted to rehear the case and specifically said that the claims “should be held eligible”.  In fact, as Retired Chief Judge of the Federal Circuit, Paul Michel, noted yesterday, “all 12 active judges agreed that the Athena patent should be deemed eligible, even though seven judges apparently felt helpless in view of Mayo.”  The truth is the Federal Circuit is not helpless. The Federal Circuit is choosing to interpret Mayo—on the life science side—and Alice—on the software side—expansively. The Federal Circuit has one primary job, which is to bring stability and certainty to U.S. patent laws. It would be easy to distinguish both Mayo and Alice, but rather than recognize the peculiar facts of these cases as representing the most trivial of innovations, the Federal Circuit has used Mayo to destroy medical diagnostics and Alice to destroy software. More analytical prowess would be expected from a first-year law student.

As Congress Contemplates Curbing Alice, More Than 60% of Issued U.S. Patents are Software Related

It has been more than two years since I last wrote here that the U.S. Supreme Court’s 2014 Alice Corp. v. CLS Bank decision has left the IP bar without a clear and reliable test to determine when exactly a software (or computer-implemented) claim is patentable versus being simply an abstract idea “free to all men and reserved exclusively to none.” It is now mid-2019, and the USPTO’s newest Section 101 guidelines interpreting Alice—and the accompanying examples—have not cleared the confusion, and Alice continues to distract the USPTO, courts, and practitioners from focusing properly on Sections 102 (novelty) and 103 (obviousness). The net effects still being increased cost, lower patent quality, lower patent portfolio valuations, wasted patent reform lobbying dollars and, in many instances, the denial of patent protection for worthwhile software inventions. Meanwhile, in the real world, which is experiencing the Fourth Industrial Revolution—where even the average modern car contains roughly 150 million lines of code—the importance of software is undebatable.