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02.19.18 Posted in, at 1:59 am by Dr. Roy Schestowitz Summary: Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way LL SORTS of -granted software patents are facing extinction. We’ll soon write about PTAB, giving some examples of invalidations, but one need not look as far as PTAB. Michael Stein, an IP Counsel from Seattle (makes one wonder if a former Microsoft executive or something else; ), isn’t too happy about the status quo. Days ago: “It’s a logic flaw in assessing patent eligibility. Take a computer readable medium, such as a hard disk.

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Claim the CRM and it would rightly be rejected for lack of novelty but not under 101. Add instructions for a SW process, it becomes ineligible under 101. Doesn’t make sense.” “The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted.”The computer is irrelevant to it. Algorithms are algorithms and they’re abstract. The above clearly misframes what Section 101/ Alice is about (by lumping that together with hardware). In the meantime, there’s also similar spin from other law firms.

As, they and Berkheimer, making it about Section 101/ Alice even though that’s now quite the case. Yesterday we also wrote about Aatrix, a newer case which.

The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted. A few days ago: Considering the patent-eligibility of claims directed to archiving digital assets, the Federal Circuit has affirmed a district court decision invalidating an independent claim under 35 USC § 101 and Alice, while vacating and remanding a judgment that certain dependent claims were patent-ineligible. Berkheimer v.

HP, Inc., No. 2017-1437 (Fed. Feb 8, 2017) (precedential) (opinion by Judge Moore, joined by Judges Taranto and Stoll). Along the way, the court chastised the District Court for using independent claim 1 of US Patent No.

7,447,713 as representative, while ignoring the patent owner’s separate arguments concerning dependent claims 4-7. They are partly correct in pointing out what many patent zealots intentionally omit; the Federal Circuit did not repudiate Section 101/ Alice at all; au contraire. But some quote miners cherry-picked quotes from that long (almost 20 pages) decision to suit the bogus narrative of PTAB disregarding facts. “How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal “ammo”?” Berkheimer was also. The title was “Is there a Light at the End of the Alice Tunnel?” as if it’s darkness to have Alice. It’s another one of those Watchtroll rants about Alice (second from this author in the past week alone) and it starts by stating: “The Federal Circuit explains in Berkheimer and Aatrix that the Federal Rules of Civil Procedure apply to patent eligibility.” Obviously. But what does not follow is the remainder of this dross about Alice being controversial, unclear, or whatever.

As we said yesterday, it’s reasonable to predict that in weeks if not months to come lawyers will just name-drop Berkheimer and Aatrix in an effort to vacate perfectly legitimate decisions. What both cases showed wasn’t an issue with Alice, which they didn’t even challenge or refute. How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal “ammo”? Posted in, at 1:03 am by Dr.

Roy Schestowitz Lobbyists are becoming officials under the Trump administration Reference: Summary: Debates and open disagreements over the stance of the lobbyist who is the current United States Assistant Attorney General for the Antitrust Division N SUNDAY, a day throughout which some patent blogs are still active (more on that later), Patently-O spoke again about. “Delrahim explained his general position,” he recalled, “that patent holders rarely create antitrust concerns.” This is a lie. It’s so much of a lie that even Patently-O disagrees. These remarks from Delrahim aren’t new and IAM already commented on these from a trolls’ perspective.

“This is a lie. It’s so much of a lie that even Patently-O disagrees.”It’s worth noting that Patently-O then alludes to right wingers (so-called ‘Conservatives’ or ‘Libertarians’) and lobbyists associated with the Kochs, as promoted recently by IAM (we wrote about this letter some days ago). To quote: “Sweeping in now to buffer Delrahim’s position are a group of libertarian scholars and others (including David Kappos and Judge Michel) who have offered their competing letter.” To suggest that these patents don’t (or rarely) pose antitrust-type threats is ludicrous. Look how Microsoft blackmails the competition using patents. Cisco, which is a patent bully, is doing the same to a small rival nowadays. The financial press has.

“So how can one be so blind to antitrust aspects? How can one overlook the fact that some large companies also use trolls to ‘punish’ their competition? It’s not too hard to see.”Japan/JPO, which we recently wrote about in relation to patents in standards, also seems to understand that patents are a barrier to fair competition in many cases. So how can one be so blind to antitrust aspects? How can one overlook the fact that some large companies also use trolls to ‘punish’ their competition? It’s not too hard to see. Some of them retreat to the Eastern District of Texas.

The trolls’ favourite courts facilitate that (“Flexuspine had sued Globus for infringing patents covering spinal implants in the Eastern District of Texas,” ). It after TC Heartland however; this will speak about “litigation Strategies against NPEs” (trolls) and “venue after TC Heartland”. There’s also regarding venue challenge (when an accuser drags you to a state you have nothing to do with because of mere allegation of patent infringement). To quote: The court denied intervenors’ motions to sever and transfer plaintiff’s actions against them for improper venue because intervenors waived venue through their intervention.

Posted in, at 12:22 am by Dr. Roy Schestowitz Related (last year):. Summary: Connections between various patent trolls and some patent troll statistics which have been circulated lately HE patent trolls epidemic is no longer just a US-centric epidemic; China is feeling it too, having tactlessly embraced patent maximalism (in itself an epidemic of the mind) like the did.

It’s not hard to tell what a patent troll is; it’s usually obvious if some entity has some services/products. Entities that are practicing have things to show. They advertise these as they attempt to make sales, transactions etc. Well, days (or even less than days) after, Dr. Mark Summerfield softened the image of patent trolls by citing and quoting the world’s largest troll,. It’s pretty obvious that Intellectual Ventures never had any products; it was never the intention.

It’s not even a broker as its main activity is suing, usually via plenty of proxies. Intellectual Ventures is as evil as can be. But Summerfield’s piece isn’t whitewashing the troll; instead, it from Lex Machina: Lex Machina’s analysis shows that since the commencement of the US patent law reforms introduced by the America Invents Act (AIA), rates of patent litigation have been in steady decline in real terms. Furthermore, while the list of top plaintiffs remains dominated by non-practising entities (NPEs), in 2017 two pharmaceutical companies entered the top ten, with two more filling out the top 15. And while headlines tend to be captured by a small number of very high awards of damages against big infringers, the reality for most plaintiffs is sobering. Just 11% of all cases terminated since 2000 reached a final judgment, with around three-quarters settling.

While patentees are victorious slightly more often than defendants (around 60/40), compensatory damages are awarded in less than half of the cases won by plaintiffs, and for those cases in which ‘reasonable royalty’ damages were awarded during the three years up until the end of 2017, the median amount was just US$4.4 million – perhaps barely enough to justify litigation in a jurisdiction where the usual rule is that each party must bear its own costs of the proceedings. We have been writing about trolls and documenting their actions for a very long time. For over a decade we’ve been pointing out that Intellectual Ventures works for Microsoft and, another troll, is backed by Microsoft.

It’s even publicly-traded, albeit its stock tanked over the years (yesterday, however, financial media took interest in the stock , ). According to IAM, another publicly-traded troll may soon purchase another. As IAM: “InterDigital due to release its FY17 results on 22nd February. Will it also announce Technicolor purchase? Technicolor announced in December that it was in advanced stage of talks about a sale with an unnamed entity.” We wrote a lot about both of these. Technicolor, unlike InterDigital, used to be an actual company rather than a troll. But now it seems like both of them are just trolls and one may soon collapse onto the other.

02.18.18 Posted in, at 12:01 pm by Dr. Posted in, at 10:19 am by Dr.

Roy Schestowitz Some bits of sensationalism, motivated by patent maximalism, leave Aatrix v Green Shades somewhat misrepresented (just like Berkheimer v HP Inc.) Green Shades has not necessarily lost (decision vacated) Summary: Aatrix alleges patent infringement by Green Shades, but whether the patents at hand are abstract or not remains to be seen; this is not what patent maximalists claim it to be (“A Valentine for Software Patent Owners” or “valentine for patentee”) EVERAL DAYS AGO, on Valentine’s Day to be precise, the ruled in PDF that law firms (Knobbe Martens). Adam Powell and Diana E. Wade from Knobbe Martens with some background: Aatrix sued Green Shades for infringement of two patents directed to systems and methods for designing, creating, and importing data into a viewable form on a computer. Green Shades moved to dismiss under § 101. The district court granted the motion and denied leave to file a proposed amended complaint.

Aatrix appealed to the Federal Circuit. The main question is, are these really software patents?

Not every time Alice gets invoked will it work; it’s not a magic wand. ‘Early birds’ in relation to 101/ Alice, calling it “PRECEDENTIAL” and “A Valentine for Software Patent Owners”. Another one: “Aatrix SW FedCir 2/14/18 valentine for patentee: Circuit vacates DCt’s R12b6 dismissal for no 101 eligible s/m; tangible computer system for creating forms; can dismiss on pleadings only if no factual allegn’s prevent resolving eligibility as legal q.

No DCt claim constrn either. Dissent: disagrees with the majority’s broad statements on the role of factual evidence in § 101 inquiry. “Our precedent is clear that the § 101 inquiry is a legal question.” Majority tries to shoehorn significant fact component into Alice analysis. Battle is joined!

I’m cautiously liking the Moore, J. Approach on this. 101 eligibility must logically sometimes raise fact q’s, just like claim construction. If we’re stuck with a ridiculous test like Alice’s step 2 “transformative inventive concept,” at least we should look at underlying facts.” “Question for en banc review of Aatrix,”. “Is a consideration whether various claim elements simply recite ‘well-understood, routine, conventionalactivities a question of Law or Fact?” In recent days we saw: The Federal Circuit faulted a lower court Wednesday for invalidating data manipulation patents as abstract ideas on a motion to dismiss, the second time in days the court has held that a judge too quickly found that patents failed the U.S.

Supreme Court’s Alice test. This is alluding to Berkheimer v HP Inc., which we covered thrice already ,. One has to be careful not to take the patent microcosm at face value.

They’re desperate for CAFC cases in favour of software patents; since they can barely find any they try to make some up. Posted in, at 8:03 am by Dr. Roy Schestowitz “China” is to the US patent ‘industry’ what “Russia” is to the US defense ‘industry’ Imagine if every nation blamed another for its own errors/shortcomings/failings/bad decisions Summary: The zealots who want to patent everything under the Sun and sue everyone under the Sun blame nations in the east (where the Sun rises) for all their misfortunes; this has reached somewhat ludicrous levels HE patent policy of a country (or continent in the case of the ) matters. But it doesn’t matter so profoundly that slight changes in patent policies will make or break countries. That’s just common sense as there’s so much more in this world than patents. The economy too is more than just patents. “That’s just common sense as there’s so much more in this world than patents.”The loosened a little on litigation and tightened patent scope, following decisions that had been made by the US Supreme Court (for the most part).

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This is a good thing as it enables US science and technology firms to operate in the lab rather than the courtroom. This, once again, is common sense. The “patents4life” blog (advocates just what it says in the name and by “life” it does not mean patent duration) seems to be upset again. Days ago it “Weaknesses in IP Protection” (fancy words for “it’s harder to sue with patents”). So a strength in mental faculties and common sense is being framed as “weakness”? The article is actually a rant about Canada, India and Ecuador, three countries where public interest (the big majority) was put ahead of Big Pharma. Watch who the blog is citing; IPO is just a front group of patent extremists looking to patent everything on Earth.

Who else can they rely on? The malicious lobby known as “Chamber of Commerce”, which is constantly attacking India. and is, calling “Father of American Innovation” a person who was not? He did not even innovate slave ownership (he ‘owned’ plenty of slaves).

“This is a good thing as it enables US science and technology firms to operate in the lab rather than the courtroom.”Quite frankly, we often conclude that these people are just delusional. How about this guy called Moskowitz? We mentioned him before. He is “Enabled by a weakened patent system.” (in the US) I said he was “still perpetuating the myth that the “patent system” is responsible for everything because this is what they do for a living” and his only response to me was something along the lines of me being an agent for China or whatever (even though I berate China for its own patent policies too — policies that ). Other people are attempting/pulling the “China” smears against me as well (as recently as last night; several times even). Notice the theme here; just like the United States often blames Russia for just about anything the patent microcosm blames China for just about anything. Watch, which is shaming of technology firms.

The patent microcosm is growingly vocal in its smearing of technology firms. It’s partly ironic because those are the firms that often bring money to lawyers. “Notice the theme here; just like the United States often blames Russia for just about anything the patent microcosm blames China for just about anything.”The above claim (saying that “patent trolls” as a concept was made up by technology firms) is patently false. They used to be called “sharks” and other words. The graph that the person shows does not support what he says about it. It’s about one particular label, which is predated by other labels (for the same thing).

But they carry on with this fiction, ignoring the growing concentration of patent trolls in the United States until some years ago (when the problem was belatedly being put under control). Citing (from The Economist, which blogged a chart), here we have who — seeing how the US continues its relative demise (e.g. Compared to China) — blames it all on patents (not enough lawsuits?). China was actually making things while other nations got busy litigating and marketing. It spent decades regenerating itself for manufacturing.

That’s why China is prospering now (in terms of measures that aren’t per capita). “Look at this from the viewpoint of when patent reform (the PTAB specifically) really took hold,” the ‘genius’ said. “Correlation is not causation but the timing is hard to ignore.” “China was actually making things while other nations got busy litigating and marketing.”No, he is just trying to superimpose what he does for a living over a chart that has virtually nothing to do with it. Another person might look at this same chart and blame “Obama” or “liberals” or “piracy” or “hacking”.

Here is another. It links to an article, then ranting about patents and Google. But the article in question has nothing to do with patents, it has nothing to do with Google, and this obsession with patents and Google simply clouds the person’s judgment. These people blame everything (in their own trade, which revolves around lawsuits) on technology firms and they are constantly using China as a scapegoat. It’s just so easy when you cannot make an economic argument/excuse for your own failures. Russia is typically used as a scapegoat for military aspects, on- and off-line.

Externalising blame. China is for economic aspects.

The name of the ‘genius’ by the way is Gatlin McArthur and based on the Twitter activity it’s some sort of a patent lawyer or troll (it does not say). The Chamber of Commerce viciously attacked India’s reputation last year and IAM helped the Chamber of Commerce do this.

A few days ago IAM. IAM actually attacked that office about a dozen times last year alone and it’s not hard to see why. India and law firms based in India still “This case is a classic example where the Patent Office has interpreted the words “computer program per se” to include software programs,” said one firm in a days-old article which digs the archive and says: This article focuses on the involvement of Section 3(k) in the process of patent application of Apple titled ‘a method for browsing data items with respect to a display screen associated with a computing device and an electronic device’. For reference to those unaware of this section, S 3 of the Indian Patents Act, 1970 bars patent eligibility of some inventions. Posted in, at 6:23 am by Dr.

Roy Schestowitz Spinning and twisting; herein lies their specialty Summary: 12 days after Berkheimer v HP Inc. The patent maximalists continue to paint this decision as a game changer with regards to patent scope; the reality, however, is that this decision will soon be forgotten about and will have no substantial effect on either PTAB or Alice (because it’s about neither of these) ECHRIGHTS has repeatedly written about Berkheimer,. Berkheimer does not change anything at the and it’s unlikely to change anything at the courts either (contrary to what patent maximalists are saying). The patent maximalists just cherry-pick sentences to bolster their bogus narrative that PTAB disregards facts or isn’t pursuing any facts. “The patent maximalists just cherry-pick sentences to bolster their bogus narrative that PTAB disregards facts or isn’t pursuing any facts.”Finnegan, a very large lawyers’ firm, now joins the Berkheimer spin wave. Days ago: In Berkheimer v. 6, 2018), the Federal Circuit affirmed the district court’s finding that certain claims of U.S.

7,447,713—directed to digital processing and archiving in a digital asset management system—were indefinite, and affirmed-in-part and vacated-in-part the grant of summary judgment that other claims were invalid under 35 U.S.C. It wasn’t a victory, it was not about Section 101, and it’s not the Supreme Court.

It’s just one among thousands of decisions about patents at this level. So a lot of the headlines we’ve seen so far are extremely and perhaps intentionally misleading. “Berkheimer is waaaaaaay overhyped by the patent ‘industry’,” I told this Federal Circuit watcher after: “Automated Tracking FedCir 2/16/18 NON-precedential; affirms DCt’s dismissal of case on pleadings bcz no eligible s/m; cites new Berkheimer decision but nothing here supports patentee’s contention of fact dispute re whether claims recite routine and conventional RFID components.” “It wasn’t a victory, it was not about Section 101, and it’s not the Supreme Court.”So Berkheimer made no substantial difference here, just as we expected. What also ought to be expected, at least for days if not weeks to come, is a misstatement about what Berkheimer really was about. Earlier today we found a couple more examples of patent maximalists misrepresenting this decision.: The phrase “minimal redundancy” in a patent claim was indefinite under 35 USC § 112 where the patent specification inconsistently described levels of redundancy achieved by its system. Berkheimer v. HP, Inc., No.

2017-1437 (Fed. Feb 8, 2017) (precedential) (opinion by Judge Moore, joined by Judges Taranto and Stoll). Accordingly, the court affirmed a district court’s summary judgment that claim 10 of US Patent No. 7,447,713 was indefinite.

The court also addressed the patent-eligibility of other claims of the ’713 patent; the patent-eligibility issues are dealt with in another post. And later came which made it seem like Berkheimer was a push against Alice itself. This refers to two decisions: In a pair of interesting software-related cases, the U.S. Court of Appeals for the Federal Circuit appears to push back on one of the supposed goals of the U.S. Supreme Court’s Alice v.

CLS Bank International decision. In Alice, the U.S.

Supreme Court clarified and restated the Mayo Collaborative Services v. Prometheus decision’s test concerning patent eligible subject matter. In doing so, the Supreme Court started a new era of U.S. Patent law which made patent eligible subject matter a very important inquiry with respect to the patentability of inventions, particulary those in the software space—although Alice’s impact is felt in other technological areas. Since Alice issued, the U.S.

Court of Appeals for the Federal Circuit has clarified the Alice test and notably provided guidance to patent lawyers on how to “avoid” or “comply” with Alice. Importantly, one of the purported benefits of Alice was to allow for the early dismissal of claims based on patent eligible subject matter. An alleged infringer could conceivably quickly raise patent eligible subject matter and get a claim dismissed on either a 12(b)(6) motion for failure to state a claim or a motion for summary judgment. In additional push-back to Alice, the Federal Circuit in Berkheimer v. HP (February 8, 2018) has recently held that even after claim construction a motion for summary judgment on patent eligible subject matter may be improper because of genuine issues of material fact. Berkheimer v HP was not about Alice.

So why even lump that in? And back we go to Finnegan, an integral part of the patent microcosm, which in this particular case in an effort to bypass Alice and ‘sell’ software patents (services) to gullible clients. To quote: Since the Supreme Court decided Alice v. CLS Bank in June 2014, the USPTO regularly issues new memoranda explaining its implementation of the § 101 framework. This includes some of the more notable memos for prosecutors: the memo on Enfish v. Microsoft from May 2016, the memo on McRO and BASCOM from November 2016, and dozens of eligibility examples. The USPTO also maintains a quick reference sheet on decisions holding claims eligible and identifying abstract ideas, and a chart of subject matter eligibility court decisions.

Pretty much all of these memos are from 2 years ago. Like we’ve said many times, in 2017 the Federal Circuit was quite unambiguous in its acceptance of Alice and lack of support for software patents.

To suggest something has changed for the ‘better’ (of the microcosm) when the Supreme Court refuses to revisit the matter is misleading, but we know what they’re trying to sell and how they sell it. Posted in at 5:37 am by Dr. Roy Schestowitz Even some US colleges are Summary: Universities appear to have become battlegrounds in the war between practicing entities and a bunch of parasites who make a living out of litigation and patent bubbles HE US has a problem of corporate influence in universities. Not only the US has this problem. As a former academic myself (I worked a few years as a postdoc), I’ve seen it from the inside and I still hear about it from friends or former colleagues.

Corporations funnel money in exchange for things; even the now pays scholars in the UK and in the US (in exchange for papers that help promote the UPC). Certainly the policy of the is impacted by this; a lot of academic papers should state openly which corporations fund the authors’ (or investigators’) department/s. There’s danger, however, that by insinuating such corruption of academia one leaves room for.

So let’s just say that scholars are, in general, more credible than think tanks and front groups (like IPO); but they’re not impenetrable to outside influence or even soft bribes. Why are we saying all this? Well, Scott McKeown, writing at Ropes & Gray’s site, which we covered here before, noting that a federal court will soon wrestle with the questions about “sovereign immunity” for academic institutions, specifically in relation to PTAB.

Why should universities that hold questionable patents be immune from the law and from scrutiny? That seems to make no sense at all, but never underestimate the power of lobbying. And what makes them a separate sovereignty to begin with? (sovereignty as in “sovereign immunity”) State-affiliated entities enjoy immunity from suit in federal courts under the 11th amendment. To date, a handful of such entities have successfully leveraged the same immunity theory to avoid review of their patents before the Patent Trial & Appeal Board (PTAB).

While still other Patent Owners have aligned themselves with Native American Tribes in an effort to benefit from their sovereign status in the hopes of avoiding PTAB review. More recently, in Ericsson v. Regents of the University of Minnesota the PTAB has determined that sovereign immunity is waived where the sovereign entity files an infringement suit.

Another law firm, noting that the State, as per an infamous old law, enabled universities to abuse taxpayers’ money to collect patents and then give these to trolls (who soon attack these very same taxpayers). Why should they — the universities that nowadays incubate startups and privatise publicly-funded research — at the same time they pursue these patents also be immune from scrutiny? Here’s more on the University of Minnesota: The PTAB’s decision also did not state whether UMinn had any input in Toyota’s strategy to request adverse judgment. Thus, from the record, it is not clear whether Toyota adequately represented the interests of UMinn in this case. Right now, owing to the above cases, Big Pharma is attempting to shelter its controversial patents using tribes (for tribal immunity). The situation has become quite unreal.

Meanwhile, judging by this from Saurabh Vishnubhakat, he continues to feed the anti-PTAB (often pro-trolls) lobby. From his abstract: “The rise of administrative patent validity review since the America Invents Act has rested on an enormous expansion of Patent Office authority.

A relatively little-known aspect of that authority is the agency’s statutory ability to intervene in Federal Circuit appeals from adversarial proceedings in its own Patent Trial and Appeal Board. The Patent Office has exercised this intervenor authority frequently and with specific apparent policy objectives, including where one of the adverse parties did not participate in the appeal.

Moreover, until recently, there has been no constitutional inquiry into the Article III standing that the Patent Office must establish in order to intervene in this way.” Patently-O (i.e. Crouch) continues to feed that same lobby too by publishing by Matthew J. Dowd and Jonathan Stroud, citing Vishnubhakat’s work. From their long post: Professor Saurabh Vishnubhakat’s recent well-reasoned post and longer article add much to the discussion about standing to appeal from the PTAB. Standing has recently garnered significant interest from the Federal Circuit. Building on existing scholarship, we have written a concise synopsis of standing law as applied to PTAB appeals, forthcoming in Catholic University of America Law Review. In our view, as a matter of standing alone, the PTO can participate as an intervenor in virtually all AIA appeals from the PTAB—and many reasons are consonant with the principles on which Professor Vishnubhakat bases his reasoning.

We make no judgment here on the merits of the positions the PTO solicitor has or will adopt, or the frequency of intervention. While there is a valid debate about the policy choices and the frequency with which the PTO has intervened, that debate is distinct from the legal question of whether the PTO has, or must have, standing as an intervenor beyond their express statutory grant. Professor Vishnubhakat reasons correctly; he just goes a bridge too far. We already know what they’re trying to accomplish because it’s well documented (for years). They hope to weaken if not abolish PTAB by comparing patents to “property” or “rights”, then alluding to terms like “property rights” (which meant an entirely different thing when the term was conceived). Last but not least, there’s this. It makes one wonder if Stanford University is now lobbying against software patents and — if so — who’s paying their School of Law for it (patent extremists will no doubt blame Google, for it’s closely connected to Stanford).

Even though the title of the paper is a loaded question ( “Is the Supreme Court’s Patentable Subject Matter Test Overly Ambiguous?), the conclusion seems to be an effort to debunk a myth promoted by patent extremists. From the abstract (about abstract patents): In four cases handed down between 2010 and 2014, the Supreme Court articulated a new two-step patent eligibility test that drastically reduced the scope of patent protection for software inventions. Scholars have described the test as “impossible to administer in a coherent, consistent way,” “a foggy standard,” “too philosophical and policy based to be administrable,” a “crisis of confusion,” “rife with indeterminacy,” and one that “forces lower courts to engage in mental gymnastics.” This Article provides the first empirical test of these assertions. In particular, 231 patent attorneys predicted how courts would rule on the subject matter eligibility of litigated software patent claims, and the results were compared with the actual district court rulings. Among other findings, the results suggest that while the test is certainly not a beacon of absolute clarity, it is also not as amorphous as many commentators have suggested.

When lobbyists such as say there’s lack of “clarity” regarding Alice they contribute to these myths. As we’ll show in our next post, the latest myth is that PTAB relies not on facts.

Monday, April 30, 2018 As noted in our recent update “” the Federal Circuit recently recognized that when determining whether a patent claim is directed to patent eligible subject matter, the “question of whether a claim element or combination of elements is well-understood, routine and conventional to a skilled artisan in the relevant field is a question of fact.” 1 In both Berkheimer and Aatrix 2, the Federal Circuit was exploring this issue in the context of litigation. The United States Patent and Trademark Office (“USPTO”) has now followed suit and issued a memo on April 19, 2018, to the Patent Examining Corps updating examination guidelines for Section 101 rejections based on the Berkheimer and Aatrix decisions (“Memo”). 3 The Memo addresses the second step of the two-step inquiry established by the Supreme Court in Alice where (1) a determination is first made as to whether the claims at issue are directed to a patent ineligible concept and (2) if so, whether the additional elements transform the nature of the claim into a patent-eligible application.

4 Although previous guidance to the Examining Corps recognized the Alice two-step inquiry 5, the Memo now provides a more structured approach to Section 101 rejections with a recognition that the factual issues underlying the patent eligibility question must be addressed by examiners with particularity, and with an evidence-based approach. The new guidelines emphasize that “an examiner should conclude that an element (or combination of elements) represents well-understood, routine, conventional activity only when the examiner can readily conclude that the element(s) is widely prevalent or in common use in the relevant industry.” 6 Significantly, the Memo further emphasizes that “the question of whether additional elements represent well-understood, routine, conventional activity is distinct from patentability over the prior art under 35 U.S.C. Paul's practice involves all aspects of intellectual property law with an emphasis on patent litigation and trial.

He has represented clients in a wide range of popular forums for patent litigation, such as the Eastern District of Texas, the Eastern District of Virginia, the District of Delaware, and the Northern and Central Districts of California, and in “337 actions” before the International Trade Commission. Paul has litigated both utility and design patent cases across a wide range of technologies, including cellular telephony, software, internet technology, semiconductor fabrication.

Gregory is an Associate in the Intellectual Property section of Andrews Kurth. He concentrates his practice on the preparation and prosecution of patents, patent appeals, patent opinions, patent litigation, intellectual property licensing and acquisitions, transactions, agreements and due diligence.

He works with companies in all stages of growth, and has extensive experience in a variety of matters, from the development of initial patent strategies for start-ups, to the maintenance of cost-effective quality in the management of high volume filings for Fortune 500 companies. Gregory also has extensive experience working directly with universities in obtaining patent protection and developing IP strategies. You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's and before using the National Law Review website. The National Law Review is a free to use, no-log in of legal and business articles. The content and links on are intended for general information purposes only. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. No attorney-client or confidential relationship is formed by the transmission of information between you and the National Law Review website or any of the law firms, attorneys or other professionals or organizations who include content on the National Law Review website. If you require legal or professional advice, kindly contact an attorney or other suitable professional advisor.

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