● 03.23.19

●● Patent Law Firms Still Desperate to Find New Ways to Resurrect Dead Software Patents in the United States

Posted in America, Australia, Europe, Patents at 11:00 am by Dr. Roy Schestowitz

Summary: There’s no rebound and no profound changes that favour software patents; in fact, judging by caselaw, there’s nothing even remotely like that

THIS morning and afternoon we took a look at US affairs, seeing that 35 U.S.C. § 101 remains unchallenged and even if the U.S. Patent and Trademark Office (USPTO) grants a software patent (or patents) — as happens a lot — courts will likely reject it (or these). The Federal Circuit follows Alice (SCOTUS) and so does the Patent Trial and Appeal Board (PTAB) when assessing inter partes reviews (IPRs). We’ve hardly seen any exception to the rule lately (patent maximalists have stooped as low as to cherry-pick mere applications, e.g. yesterday, or revisit rather old cases); it is possible that, as per this report and another from Patently-O, § 101 will be revisited in SCOTUS. And even if it does happen, it will not necessarily bring back software patents to the US; it may as well force another long(er) nail into their coffin of software patents. Suffice to say, law firms and law students casually spread propaganda about software patents, even as recently as days ago. They want people to believe that software patents are both desirable and attainable (maybe at the Office, but courts are another matter). Here’s another new example. The patent microcosm (“Attorney Julie Reed is a member of Miller Nash Graham & Dunn’s patent team”) keeps lobbying the USPTO and American courts for software patents even though this microcosm never writes any code.

“There’s a similar problem in Europe. Voices are being hijacked and software developers are routinely spoken ‘for’ (without their consent).”The patent microcosm of Australia (Ken Simpson and David Webber of Davies Collison Cave in this case) is still looking at one very old decision in an attempt to sell bogus software patents that Australian courts would likely reject. Maybe the office would reject that one too (if there was a lawsuit over it). There’s this new article about IP Australia at IDG, but it does not deal with this subject.

There’s a similar problem in Europe. Voices are being hijacked and software developers are routinely spoken ‘for’ (without their consent). Patent law firms pretend to care about them, even though all they care about is themselves. But the European Patent Office (EPO) will be the subject of our next post. █

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