Posts Tagged: "software patents"

Lessons from an Independent Female Inventor: Today’s Patent Laws Preclude ‘SUCCESS’

It has been one year since my software patent was invalidated in the U.S. District Court for the Southern District of New York.  Now, this intellectual property is considered worthless and my dream of paying off extensive student loans with the proceeds from patent licensing fees are in the past. The irony being that if it were not for these extensive student loans, this invention, most likely, would not have come to into being. My patent No. 6,769,915, issued in 2003, was invalidated under Section 101 and struck down on appeal. The patent covers “a user-interactive behavior modification system” that is in competition with technology pursued by the companies including Nike, FitBit, Apple, and Samsung.  The rules that existed when I applied for this software patent in 2000 no longer guarantee myself and hundreds of other independent inventors the right to collect patent licensing fees. This right was granted to all with The Patent Act of 1790. Yet, over the last 15 years, the U.S. patent laws have been changed drastically by extremely well-financed lobbyists on behalf of the U.S. Patent and Trademark Office’s (USPTO’s) largest customers— global corporations, including the Big Tech industry. This has relieved Apple, Google, Facebook, etc. from the necessity of having to pay independent inventors software licensing fees. With this shift in intellectual property laws, the once small startups of Silicon Valley have become the large monopolies they are now.

What to Know About the 2019 European Patent Office Guidelines for Examination

The European Patent Office (EPO) recently published its Guidelines for Examination 2019, which came into force on November 1. Compared to previous years, the volume of changes is much smaller, and this witnesses the effort by the EPO in past years to arrive at a more stable text of the Guidelines, particularly concerning the software patentability sections. Yet some changes have been made to software patentability guidelines as well as to other important sections, such as the numerical ranges and clarity matters. Continuing the trend of past years, the Guidelines continue to be enriched with helpful examples.

Trading Technologies, ChargePoint Ask High Court for Help with Federal Circuit’s Conflicted Approach to Patent Eligibility

Trading Technologies International, Inc. (TT) has filed a second petition with the U.S. Supreme Court asking it to review a Federal Circuit holding that computer-implemented inventions that do not improve the basic functions of the computer itself are directed to abstract ideas and therefore patent ineligible. The present petition relates to U.S. Patent Nos. 7,685,055 (the “’055 patent”); 7,693,768 (the “’768 patent”); and 7,725,382 (the “’382 patent”). The petition TT filed in September relates to Patent Nos. 7,533,056, 7,212,999, and 7,904,374. The patents are all from the same family as three other patents found patent eligible by the CAFC in 2017. The latest petition argues that the Federal Circuit “simply declined to address conflicting Federal Circuit authority involving the same patent family or the line of other Federal Circuit decisions adopting and applying that authority’s reasoning,” and, therefore, clarification is needed from the High Court. The company’s argument may also get a boost from another petition filed recently appealing the controversial decision in ChargePoint v. Semaconnect, in which the Federal Circuit held that a vehicle charging station was not patent eligible.

Kentucky Steps Up When Patents Step Out for Insurance Innovation

Insurance is a highly regulated field. New approaches to innovation are sorely needed. The need for innovation itself is undeniable as the tech world runs head long into the world of insurance. For example, the regulation of insurance is hundreds of years in the making and steeped in arcane regulation. However, the patent system—ostensibly an engine of innovation—has been notably hostile to insurance innovations, especially since the Supreme Court’s 2014 decision in Alice Corp. Pty Ltd. v. CLS Bank Intern. Indeed, the USPTO’s latest guidance on applying Alice specifically lists insurance as a type of fundamental economic practice that should be treated as unpatentable. While the federal patent system may be restricting the protection available for insurance innovations, there are other ways of supporting innovation, and Kentucky is leading the way with its recently passed regulatory sandbox for insurance innovation.

A Strange Evolution: The Federal Circuit Has Entered the Theater of the Absurd

Something has happened at the United States Court of Appeals for the Federal Circuit over the past six months. After inching forward in a positive direction on patent eligibility, the entire court, including those judges who had been on the pro-patent eligibility wing of the court, have fallen, slipped, or just given up. The precisely correct characterization remains elusive given the traditional, characteristic and appropriate secrecy that surrounds judicial tribunals. As constitutional officers charged with independently deciding cases, judges take few speaking engagements. Even when they do, they generally speak off the record, and never speak about specific issues or cases that may at some point come before them. In this industry, that means little discussion is had between the bench and bar relating to matters of patent eligibility outside the record, which is itself unfortunate. If the judges of the Federal Circuit would sit through a conference exploring patent eligibility as it applies to the software and biotechnology industries, they would learn much about the uncertainty their decisions are causing. Still, something undeniably has changed.

Improving Speed and Quality Using Automation for Patent Application Drafting

Patent application drafters are front-line participants to some of the most amazing innovations in the world today. A recent WIPO paper on Artificial Intelligence (AI) outlines how we are filing for patents on knowledge automation at an increasing rate. Our current tools, however, do not reflect the innovations with which we are so familiar. Historically—and to this day—the process of drafting a patent application has been a manual task. It is a task that takes, on average, 40 hours of a highly-skilled patent application drafter’s time. Anyone who has drafted any volume of patent applications for a client knows that the drafting process typically involves the use of boilerplate language and substantial copy and paste operations. While performing these repetitive tasks, we have all thought: “there must be a better way.” While we find ourselves surprised by the lack of tools to help with patent application drafting, we recognize the challenges that must be overcome. Different attorneys, firms, and clients often have different styles and preferences when it comes to the way patent applications are drafted. Thus, any automation tools would necessarily need to handle these different styles and preferences. But these challenges notwithstanding, the days of drafting a patent application completely manually by a single patent drafter are coming to an end.

Patent Eligibility Under Section 101: Has the United States ‘TRIPPED’ Up?

The present U.S. eligibility jurisprudence, and especially that of the Federal Circuit, not only creates serious issues of U.S. domestic law but also arguably places the U.S. in violation of its obligations under the TRIPS treaty with respect to inventions at both ends of the subject-matter spectrum. Acts of Congress, including Section 101, where fairly possible, ought to be construed so as not to conflict with international law or with an international agreement with the United States, particularly where, as with TRIPS, the United States was the moving spirit behind the treaty. See Murray v. The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804). Although there may have been room for doubt prior to the en banc refusal in Athena and the Australian decision in Ariosa, it is submitted following Judge Moore’s dissent that the situation has become a virtual certainty.

Trading Technologies Asks Supreme Court to Restore Congress’ Purpose in Creating the Patent Act

Trading Technologies International, Inc. (TT) has filed a petition for certiorari with the U.S. Supreme Court asking it to clarify U.S. patent eligibility law, including whether the Court should overrule its “abstract idea” precedents. The petition relates to the Federal Circuit’s April 2019 decision siding with the Patent Trial and Appeal Board (PTAB) that certain claims of TT’s patents for graphical user interfaces (GUI) for electronic trading were eligible for covered business method (CBM) review and also patent ineligible. IPWatchdog has written much about this and related Trading Technologies cases. Though earlier Federal Circuit panels had found other TT patents not eligible for CBM, as the court found they were directed to technological inventions, Judge Moore said in her April opinion that the patents at issue here—numbers 7,533,056, 7,212,999, and 7,904,374—”relate to the practice of a financial product, not a technological invention,” and that “the specification makes clear that the invention simply displays information that allows a trader to process information more quickly.”

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.

As Stakeholders Await New 101 Bill, Responses to Tillis Underscore Need for Movement

Last month, we reported on the responses submitted to Senator Richard Blumenthal (D-CT) by panelists who participated in the June hearings on the state of U.S. patent eligibility, held by the Senate Judiciary Committee’s Subcommittee on Intellectual Property. 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 certain participants. While movement on the bill appears to be stalled for the time being, with reports that Tillis and Senator Chris Coons (D-DE) have reinstituted the stakeholder roundtables that led up to the draft bill and hearings in the first place, it’s worth reviewing some of the responses to Tillis’ questions as the IP community waits for the next move. From David O. Taylor’s statistic that 62% of investors he surveyed said they were less likely to invest in companies where patent protection is not available, to Bob Armitage’s characterization of the draft bill’s revision to Section 112(f) as “perfect,” to the Cleveland Clinic’s statement that they are currently less likely to make the necessary investments to bring new advances in diagnostics to market, these responses are a reminder of what’s at stake.

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.

Federal Circuit: ‘Physicality’ of Processing Paper Checks Does Not Save Solutran’s Claims from 101 Challenge

The Federal Circuit recently reversed the District of Minnesota’s denial of summary judgment and held claims related to paper check processing invalid under 35 U.S.C. § 101. Despite the claims being directed to processing “physical” checks, the Court held that “the abstract idea exception does not turn solely on whether the claimed invention comprises physical versus mental steps.”  The Court also reasserted that novelty and/or non-obviousness does not obviate ineligibility under Section 101. See Solutran, Inc. v. Elavon, Inc., Nos. 2019-1345, 2019-1460, 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).

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.