abstract ideas – Techdirt (original) (raw)

We're Saved! Company Claims It's Patented 'Containing the Spread of Disinformation' And Will Stop COVID-19 Disinfo

from the not-how-it-works-guys dept

A friend sent over a press release announcement from a company called CREOpoint that claims it has patented “Containing the Spread of Disinformation” and that it was now using it to “help contain the spread of COVID-19 disinformation.” Would that it were so, but that’s not how any of this works. Tellingly, the press release does not provide the patent number of any of the details about the patent — which should probably be your first sign that it’s utterly bogus. However, with a little sleuthing I was able to turn up the patent application… and it confirms that this is a ridiculous patent that never should have been approved. The official title is “Containing Disinformation Spread Using Customizable Intelligence Channels.”

The 1st claim is the main one and describes what the patent is about:

A computer-implemented method of rating the veracity of content distributed via digital communications sources, comprising: creating an ontology and selecting keywords for at least one topic of the content; creating a customizable intelligence channel for the at least one topic of the content and extracting from the customizable intelligence channel a first list of potential experts on the at least one topic of the content sorted by at least relevance and influence; mining trusted media sources for the at least one topic of the content to extract a second list of potential experts on the at least one topic of the content; providing the first and second lists of potential experts on the at least one topic of the content to a database; rating and ranking the potential experts as a function of at least one of professionalism, reliability, proximity, experience, responsiveness, and lack of self-interest in the at least one topic of the content to identify a short list of experts; providing the content to the short list of experts for evaluation; polling the short list of experts about the veracity of the content to create a veracity score; and delivering the veracity score with the content.

Basically, the “patent” is for automated review of some text, figuring out who the best experts are, and then “polling” those specific experts to see whether or not the content is valid. And, that’s neat and all, but also, I’d imagine that most people who work in content moderation would laugh at this as a “solution” do disinformation online, because that’s not how stop it.

Either way, this is exactly the kind of patent that the Supreme Court said was invalid in the Alice decision. That ruling said that you can’t get a patent if it “does no more than require a generic computer to perform generic computer functions.” But that’s exactly what this does. If you told someone to write a piece of software to route online content to experts, they’d pretty much all write exactly this software. So it’s a generic application, doing generic computer functions, in a manner that pretty much anyone else could do if it were useful.

This actually gets to the point we were just raising. In the beginning of 2019, the UPSTO issued “new guidance” regarding the Alice decision to patent examiners that caused them to start issuing a lot more software patents after a few years where they were rejecting them, based on what the Supreme Court said.

In fact, this kind of ridiculous patent is the kind of thing that CCIA warned the Patent Office would start getting approved despite the simple fact that courts have said such things are not patentable — including claims around “collecting, analyzing, and displaying information.”

The Guidance lays out three categories of abstract ideas: mathematical concepts, certain methods of organizing human activity, and mental processes. However, this categorization appears to omit a category of abstract ideas characterized by the Federal Circuit as a ?familiar class of claims??the set of abstract ideas that are directed to ?collecting, analyzing, and displaying [] information? or ?collecting, displaying, and manipulating data.? While the Federal Circuit has made clear that it does not ?suggest that every claim involving the collection, organization, manipulation, or display of data is necessarily directed to an abstract idea,?7 this familiar class of cases is a significant aspect of the Federal Circuit?s abstract idea jurisprudence and appears not to be explicitly addressed by the Guidance.

So the courts say that most patent claims for collecting and analyzing data on a regular computer are probably generic and therefore unpatentable under Alice. A few years go by and the Patent Office issues “guidance” that does not include anything regarding that category of patents… and suddenly you get bogus patents like these, and silly press releases about how they’re stopping disinformation about COVID-19.

Filed Under: abstract ideas, alice, content moderation, covid-19, disinformation, supreme court, uspto
Companies: creopoint

Congress Pushing A Terrible Bill To Massively Expand Patent Trolling

from the this-would-be-bad dept

For most of the history of Techdirt, we’ve talked about what an incredible mess the US patent system has been. There are many, many reasons for this, but a big one was that for decades, the appeals court that handles all patent cases, the Court of Appeals for the Federal Circuit (or CAFC), kept expanding what it considered to be patentable subject matter, and the Supreme Court completely ignored the issue. This culminated, ridiculously, in the State Street decision, which massively expanded what was considered patentable software (before that there was software covered by patents, but it was very, very limited). What made this situation truly hellish for innovators, is that (1) the software world was exploding with all different kinds of apps, and (2) almost no software was documented in the very few areas where patent examiners look for prior art: mainly, other patent applications and scientific journals. There was no need to document software in those places, because (1) when most people recognized software shouldn’t be patented, very few even tried, and (2) why would you?

That resulted in a perfect storm in which patent trolls rushed in to fill the void. Tons upon tons of ridiculously broad patents were filed (or older ones were dug up and “repurposed” for use in trolling). Then it just became a shakedown game of numbers. Find companies doing something vaguely like what’s broadly and oddly described in your patent, tell them they’re infringing — and offer to “settle” for less than the cost to win in court.

The tide started to change over the last decade and a half or so, in part because of a few changes to the law, but more importantly, the Supreme Court started to wake up to the fact that the CAFC had gone rogue and had massively rewritten patent law. And then over a period of about a decade, case by case by case, the Supreme Court smacked down CAFC. Two of the biggest such smackdowns came in the Mayo Labs ruling in 2012 which rejected medical diagnostic patents, and the Alice ruling in 2014, which rejected patents on software that performs “generic functions” (which is basically all software).

Both of these cases focused on Section 101 of the Patent Act, which defines what actually is patentable subject matter. It’s short and sweet:

Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

In both of the cases mentioned above, the Supreme Court noted simply that 101 doesn’t cover “laws of nature, natural phenomena, and abstract ideas” as decided in an earlier case that CAFC had ignored for two decades, Diamond v. Diehr. In the Mayo case, the court noted that medical diagnostics was trying to patent laws of nature. In the Alice case, “abstract ideas.”

Since then, both cases have been incredibly useful in killing off a ton of truly awful patents. And the patent trolls and their friends have been really angry about this. And now it appears they’ve finally got a plan to reopen the patent trolling floodgates. And, they’ve got bipartisan members of both the House and the Senate to push a plan for them. In the Senate, Thom Tills and Chris Coons have announced plans to introduce a horrific bill to rewrite Section 101 in a manner that can only be called “Make Patent Trolls And Bogus Litigation Great Again.” A House version is being introduced by Reps. Hank Johnson and Steve Stivers.

The biggest part of the bill is to remove the requirement that a patent be for an invention that is “new and useful.” Yes, you read that right. The most fundamental part of a patent is that it’s to encourage people to invent something that is new and useful, and these elected officials want to do away with that. Then, they want to massively limit what is not patent eligible, demanding very narrowly defined areas, like “fundamental scientific principles” and “products that exist solely and exclusively in nature,” rather than what we now have, which is “laws of nature.” On the software side, they want to say that only “pure mathematical formulas” and “mental activities” would be excluded, but abstract ideas implemented in software? PATENT AWAY!

And, of course, the bill is explicit, that with this new list of narrowly defined exclusions, it would literally wipe away those big Supreme Court wins that have helped open up innovation and slowed down patent trolls.

This would be absolutely terrible for innovation.

Alex Moss, from EFF, has gone through and detailed just how massive a change this proposal would create and what a disaster it would be for companies that actually innovate (as opposed to those that just shake innovators down for money.) On the removal of “new and useful” from 101:

Removing the requirement that inventions actually be new and useful upends a fundamental Constitutional principle of patent law. The Constitution grants Congress the power to issue an ?exclusive right,? such as a patent, only ?[t]o promote the progress of science and useful arts.? The patent system?s entire purpose, in other words, is to encourage technological progress. Allowing patents on things that are neither new nor useful undermines the purpose of the Intellectual Property Clause.

Section 101?s purpose is to weed out patent applications that cannot possibly be inventive. The ?existing statutory utility requirements? do not, and cannot, accomplish this. That?s because other parts of U.S. patent laws do not include a specific ?utility? requirement. Section 102 and 103 set out requirements for determining whether an invention is obvious in view of pre-existing knowledge in the field?what is known as ?prior art??but courts and the Patent Office apply those requirements extremely narrowly.

It?s especially difficult to invalidate bad software patents under Sections 102 and 103. Because courts and the Patent Office didn?t start granting patents on software alone until the mid-1990s, there is a dearth of patents and patent applications that could be used to invalidate software patents under Sections 102 and 103. And because the code for most software products is not public, it isn?t readily available to others in court challenges.

So, yeah, that would be bad.

At this point, this is just a proposal, rather than an actual bill, but they promise to introduce it later this year. Patent trolls and some larger organizations that live off of patent licensing are likely going to push hard for this bill. It’s basically a full employment act for patent lawyers. What it’s not is a recipe for innovation. It is the reverse. Of course, because some people laughably believe that a patent itself is a sign of innovation, too many people incorrectly believe that “stronger” patent laws mean more innovation. That’s not how it works. Patent trolling scares off actual innovators, makes innovation much more costly, and blocks important innovations from the marketplace.

Already the quotes from the Senators and Representatives demonstrate the kind of innovation-ignorant arguments we’re likely to see in support of this bill. Coons falsely claims that “today US patent law discourages innovation in some of the most critical areas of technology, including artificial intelligence, medical diagnostics, and personalized medicine.” This is laughable. There are massive innovations happening in all three of those fields. And part of that is because of decisions like Mayo and Alice opening up those fields and limiting some of the worst patent trolling.

Tills claims that this is to “reform our nation’s complicated patent process.” It’s not that complicated. And removing the requirements for “new and useful” and making most software patentable again is going to create a huge mess of a patent thicket that will be a massive drain on innovation. That’s complicated.

Hopefully, reason will prevail and these elected officials will learn just how much harm they’re about to do to the sectors of the economy that are actually innovating — with less fear of bogus patents and widespread patent trolling. Bringing that back would be a total disaster for innovation.

Filed Under: abstract ideas, chris choons, hank johnson, medical diagnostic patents, new and useful, patent eligible subject matter, patent trolling, patents, software patents, steve stivers, thom tills, useful

Patent Owner Insists 'Integers' Do Not Include The Number One

from the patent-math dept

Patent trolls are a tax on innovation. The classic troll model doesn’t include transferring technology to create new products. Rather, trolls identify operating companies and demand payment for what companies are already doing. Data from Unified Patents shows that, for the first half of this year, patent trolls filed 90% of the patent cases against companies in the high-tech sector.

Core Wireless Licensing S.A.R.L. is one of the patent trolls attacking the high-tech sector. Core Wireless is incorporated in Luxemburg, and is a subsidiary of an even larger troll, Canada-based Conversant. It owns a number of patents that were originally filed by Nokia. It has been asserting some of these patents in the Eastern District of Texas. In one case, a jury recently found that Apple did not infringe five of Core Wireless’s patents. In another case, it is asserting eighteen patents against LG. One of its arguments in the LG case came to our attention as an example of what patent trolls think they can get away with.

In patent litigation, patent owners and alleged infringers often disagree about the meaning of words in patent claims and ask the court to resolve the differences (a process known as “claim construction”). In Core Wireless’ case against LG, the majority of the disputes seem like usual ones in terms of patent litigation.

Except for the dispute about “integer.”

You may have learned what an “integer” was in high school. It’s a common concept many teenagers learn about when they take algebra. In Ontario, Canada, for example (where Conversant is based), teachers discuss integers in the 9th and 10th grades. As defined in the Ontario Curriculum, an integer is: “Any one of the numbers . . . , ?4, ?3, ?2, ?1, 0, +1, +2, +3, +4, . . . ” Here’s a PBSMathClub video with a helpful explanation:

It’s pretty clear what an “integer” is. Here are a few more definitions from various sources, all confirming the same thing: “integers” are all of the whole numbers, whether positive or negative, including 0.

But Core Wireless, the patent owner, told the court that an “integer” is “a whole number **greater than 1.**” Core Wireless is saying that not only are negative numbers not integers, neither are 0 or 1.

This is preposterous.

As one mathematician told us:

The integers are the natural numbers (whole numbers greater than zero), their negatives, and the number zero (very important). So saying that the integers are all whole numbers greater than one is a bit like saying that sweet and sour chicken is just sour sauce because you’re missing its negative, and the chicken, which is very important. Or that a turducken is just turkey: we all know that the duck and the chicken are essential.

To be clear: the law allows patent applicants to redefine words if they want. But the law also says they have to be clear that they are doing that (and in any event, they shouldn’t be able to do it years after the patent issues, in the middle of litigation). In Core Wireless’ patent, there is no indication that it used the word “integer” to mean anything other than what we all learn in high school. (Importantly, the word “integer” doesn’t appear in the patent anywhere other than in the claims.)

It appears that Core Wireless is attempting to redefine a word?a word the patent applicant freely chose?because presumably otherwise its lawsuit will fail. The Supreme Court has long disapproved of this kind of game playing. Back in 1886, it wrote:

Some persons seem to suppose that a claim in a patent is like a nose of wax which may be turned and twisted in any direction, by merely referring to the specification, so as to make it include something more than, or something different from, what its words express.

Just last year, the Supreme Court issued an opinion in a case called Nautilus v. Biosig Instruments emphasizing that patent claims must describe the invention with “reasonable certainty.” Using a word with a well-known and precise definition, like “integer,” and then insisting that this word means something else entirely is the very antithesis of reasonable certainty.

We hope the district court applies long-standing Supreme Court law and doesn’t allow Core Wireless to invent a new meaning for “integer.” Patent claims are supposed to provide notice to public. The public should not be forced to guess what meaning the patent owner might later invent for the claims, on penalty of infringement damages.

Ultimately, this is just one baseless argument in a bigger case. But it reveals a deeper problem with the patent litigation system. A patent owner wouldn’t argue that “integer” doesn’t include the number one unless it thought it might get away with it. The Patent Office and lower courts need to diligently apply the Supreme Court’s requirement that claims be clear. We also need legislative reform to discourage parties from making frivolous arguments because they think they can get away with it. This should include venue reform to prevent trolls from clustering in the troll-friendly Eastern District of Texas.

Republished from the Electronic Frontier Foundation Deeplinks blog.

Filed Under: abstract ideas, integers, patents, software patents
Companies: core wireless

Patent Loving East Texas Judge Clips Wings Of Largest Patent Troll

from the go-away-now dept

Earlier this year, we noted that patent trolls had struck back, filing a ton of new cases this year. The leading patent troll was a firm called eDekka:

Like many patent trolls, not much is known about eDekka, but it’s represented by Austin Hansley, who just happens to represent all three of the top patent troll lawsuit filers in that graphic above: eDekka, Data Carriers and Wetro Lan (you may recall Wetro Lan, for using an expired bogus patent on a basic firewall to troll lots of companies — and also for its name (say it out loud)). eDekka, though, topped the list with a ton of lawsuits over US Patent 6,266,674, for “random access information retrieval utilizing user-defined labels.”

However, in a surprise move, Judge Rodney Gilstrap, in the Eastern District of Texas, has just tossed out 168 lawsuits filed by eDekka, after noting that the ‘674 patent is not valid under Section 101 of the Patent Act. As recent Supreme Court rulings have made clear, you can’t just take a standard thing that people have done for ages, and “do it on a computer” to get a patent. And that’s the key problem that Judge Gilstrap notes in his ruling:

As summarized above, the claimed idea represents routine tasks that could be performed by a human. While the generic requirement of a ?data structure? is included, Claim 1 essentially describes the common process of receiving, labeling, and storing information, while Claim 3 encompasses retrieving such information.

And thus, the patent covers nothing more than an “abstract idea,” which are not patentable under Section 101.

But… that’s not all. In this one single order, Judge Gilstrap says that everyone else who has been sued under this patent shall be considered prevailing parties in their lawsuits and then issued a separate order allowing all of the defendants sued by eDekka to jointly file a brief asking for attorneys’ fees:

The Court ORDERS Defendants to file a consolidated brief of not to exceed fifteen (15) pages in support of any and all claims for reasonable attorney fees…

As Joe Mullin notes in his story on this (linked above), this is especially surprising from Judge Gilstrap:

Just the invite is a sign of changing times: in his four years on the bench, Gilstrap has never granted attorneys’ fees to a defendant.

Indeed, as we’ve pointed out just recently, Judge Gilstrap had become something of a patent troll favorite down in East Texas. Perhaps that’s changing…

Filed Under: abstract ideas, austin hansley, east texas, labels, patentable subject matter, patents, rodney gilstrap
Companies: data carriers, edekka, wetro lan

Patent Troll Kills Open Source Project On Speeding Up The Computation Of Erasure Codes

from the promoting-the-progress dept

Via James Bessen, we learn of how a patent trolling operation by StreamScale has resulted in an open source project completely shutting down, despite the fact that the patent in question (US Patent 8,683,296 for an “Accelerated erasure coding system and method”) is almost certainly ineligible for patent protection as an abstract idea, following the Supreme Court’s Alice ruling and plenty of prior art. Erasure codes are used regularly today in cloud computing data storage and are considered to be rather important. Not surprisingly, companies and lawyers are starting to pop out of the woodwork to claim patents on key pieces. I won’t pretend to understand the fundamental details of erasure codes, but the link above provides all the details. It goes through the specific claims in the patents, breaking down what they actually say (basically an erasure code on a computer using SIMD instructions), and how that’s clearly an abstract idea and thus not patent-eligible. Furthermore, it details the relevant prior art:

The most prominent prior art invalidating this patent is the RAID6 (one of the most commonly used Erasure Code) implementation of the linux kernel. In an article dated 2004 (i.e. ten years before the patent was granted to StreamScale) it is described to be optimized as follows : For additional speed improvements, it is desirable to use any integer vector instruction set that happens to be available on the machine, such as MMX or SSE-2 on x86, AltiVec on PowerPC, etc. Where SSE2 is the acronym of Streaming SIMD Extensions 2. The patent cites Anvin aticle?s but only to state the problem and does not acknowledge it also contains the solution.

Even so, StreamScale apparently bullied the open source project’s creator, Professor James Plank, into removing his repositories and saying he is no longer working on the software project. No lawsuit was filed, but Plank posted a statement that makes it clear he was threatened by StreamScale and agreed to do this to avoid a lawsuit. Apparently, StreamScale also threatened USENIX for merely publishing a paper by Plank detailing the concepts in his software.

After a failed attempt to bully USENIX, StreamScale intimidated (i.e. there was no lawsuit and therefore no ruling) James Plank, a known researcher in the field, also author of widely used Free Software libraries using the same techniques as those described in the linux kernel. James Plank agreed to publish the following on his web site as part of a settlement, presumably in exchange for a promise from StreamScale to not threaten to sue him in the future.

On this page I (James Plank) am providing notice that:

* GF-Complete and Jerasure versions 2.0 and later are no longer supported. * StreamScale, Inc. offers a similar solution for commercial purposes. * I offer no representations or warranties in general about StreamScale?s products. * I have verified that StreamScale?s solution is faster than GF-Complete or Jerasure in at least some respects. * StreamScale, Inc. asserts that the use of GF-Complete (particularly as part of Jerasure 2.0 or later) or any similar software, method or code for erasure coding infringes StreamScale?s issued United States Patent No. 8,683,296. * I express no opinion on StreamScale?s claims, but I believe that parties should be aware that StreamScale asserts such claims.

The repositories on which James Plank published the software implementing the ideas from his research papers ( gf-complete and jerasure ) have been removed the same day, meaning James Plank had to agree to never work on implementing erasure coded software in the future.

There is the only marginally complicating factor that Plank, apparently, was a consultant for StreamScale a few years ago — leading the company to argue that his research, publications and code pulled from information he had learned while working with the company. But, again, these ideas both have clear and known prior art and do not appear to be patentable subject matter. And the end result: less ability to innovate (or even research!) these sorts of things, and some important open source code no longer being supported.

Filed Under: abstract ideas, erasure codes, james plank, patent troll, patentable subject matter, patents, prior art
Companies: streamscale

Latest CAFC Ruling Suggests A Whole Lot Of Software Patents Are Likely Invalid

from the target-practice dept

Some more good news on the patent front. Following the Supreme Court’s ruling last month in the Alice v. CLS Bank case, there has been some question about how the lower courts would now look at software patents. As we noted, the Supreme Court’s ruling would seem to technically invalidate nearly all software patents by basically saying that if a patent “does no more than require a generic computer to perform generic computer functions” then it’s no longer patentable. But that, of course, is basically all that software does. Still, the Supreme Court’s ruling also insisted that plenty of software was still patentable, but it didn’t give any actual examples.

Now in the first post-Alice ruling on a software patent at CAFC (the appeals court that handles all patent cases, and which is infamous for massively expanding the patentability of software over the years), the court has smacked down a patent held by one of the many (many, many) shell companies of patent trolling giant Acacia. The shell, Digitech Image Technologies, got control of US Patent 6,128,415, which had originally held by Polaroid. The patent supposedly describes a setup for making sure images are consistent on a variety of different devices. Acacia/Digitech did what patent trolls do and basically sued a ton of companies, including NewEgg, Overstock, Xerox, Toshiba, Fujifilm and more.

A lower court kicked out the patent, and now CAFC has upheld that ruling, making use of the Alice ruling to make it doubly clear this isn’t patentable. The court doesn’t waste too much time, as the ruling is quite short. The key bits:

There is no dispute that the asserted method claims describe a process. Claims that fall within one of the four subject matter categories may nevertheless be ineligible if they encompass laws of nature, physical phenomena, or abstract ideas….. The Supreme Court recently reaffirmed that fundamental concepts, by themselves, are ineligible abstract ideas. Alice Corp. v. CLS Bank… In determining whether a process claim recites an abstract idea, we must examine the claim as a whole, keeping in mind that an invention is not ineligible just because it relies upon a law of nature or mathematical algorithm. As noted by the Supreme Court, ?an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.? … A claim may be eligible if it includes additional inventive features such that the claim scope does not solely capture the abstract idea…. But a claim reciting an abstract idea does not become eligible ?merely by adding the words ?apply it.??

The method in the ?415 patent claims an abstract idea because it describes a process of organizing information through mathematical correlations and is not tied to a specific structure or machine.

[… Discussion of specific claim in the patent …]

The above claim recites a process of taking two data sets and combining them into a single data set, the device profile. The two data sets are generated by taking existing information?i.e., measured chromatic stimuli, spatial stimuli, and device response characteristic functions?and organizing this information into a new form. The above claim thus recites an ineligible abstract process of gathering and combining data that does not require input from a physical device. As discussed above, the two data sets and the resulting device profile are ineligible subject matter. Without additional limitations, a process that employs mathematical algorithms to manipulate existing information to generate additional information is not patent eligible. ?If a claim is directed essentially to a method of calculating, using a mathematical formula, even if the solution is for a specific purpose, the claimed method is nonstatutory.?

As Tim Lee notes, this ruling is great for folks opposed to software patents, and should send chills down the spines of those who support them. Because that basic reasoning can invalidate a hell of a lot of software patents.

Consider Google’s famous PageRank patent, which covers the algorithm at the heart of Google’s search engine. In the language of the Federal Circuit, it claims the use of “mathematical algorithms” (involving eigenvectors) to “manipulate existing information” (a list of links between web pages) to “generate additional information” (a ranking of the pages).

The number of software patents out there that use algorithms to manipulate existing information to generate additional information is… rather large. And they may all be invalid.

Filed Under: abstract ideas, algorithms, cafc, invalid, software patents
Companies: acacia, alice, cls bank, digitech, newegg, overstock, toshiba, xerox

Patent Court Stands By Its Claim That Adding 'On The Internet' Can Make An Abstract Idea Patentable

from the oh-come-on dept

We’ve been following the Ultramercial case quite closely over the past few years. If you’re not aware, this involved a company that more or less patented the idea of “you must watch this ad to get this content” (US Patent 7,346,545) and then sued pretty much everyone. Most of the companies it sued settled rather than fight (which happens all the time), including YouTube and Hulu, but one company, WildTangent, has continued the fight. Eventually, though, the case reached the Supreme Court with the key question being does taking an abstract idea like “watch this before getting that” and adding “on the internet” to it make it patentable? It’s well established that you can’t patent an abstract idea, but for some reason many seem to think that if you say “on the internet” it’s no longer abstract. The Supreme Court did not do a full hearing on the case, but asked the appeals court of the federal circuit (CAFC — known as the patent appeals court) to reconsider its original ruling in light of the Supreme Court’s ruling in the Prometheus case, where it said that you can’t patent broad medical diagnostics. The rule there was that you “could not simply recite a law of nature and then add the instruction ‘apply the law.'” So, is the same true for “abstract idea” plus “on the internet”?

Apparently, for CAFC, the answer is that there is a difference, and that merely adding “on the internet” to an abstract idea makes it patentable. The ruling is quite incredible, not just for the fact that it sets up a ridiculous standard, but also for its technical naivete. CAFC basically says, gee, there are a lot of steps and graphs and charts in the patent, so, it’s probably not abstract.

Viewing the subject matter as a whole, the invention involves an extensive computer interface. Unlike Morse, the claims are not made without regard to a particular process. Likewise, it does not say “sell advertising using a computer,” and so there is no risk of preempting all forms of advertising, let alone advertising on the Internet. Further, the record at this stage shows no evidence that the recited steps are all token pre- or post-solution steps. Finally, the claim appears far from over generalized, with eleven separate and specific steps with many limitations and sub-steps in each category. The district court improperly made a subjective evaluation that these limitations did not meaningfully limit the “abstract idea at the core” of the claims.

Part of the issue is that it needs to show something new here, and the court seems to argue that any software effectively creates a “new machine” based on some really wacky logic. It states “as computer scientists understand”:

a programmed computer contains circuitry unique to that computer. That “new machine” could be claimed in terms of a complex array of hardware circuits, or more efficiently, in terms of the programming that facilitates a unique function.

Read that again. They’re saying every software program creates “unique circuitry.” That’s how they claim this is a “new machine” making the idea patent eligible. However, as computer scientist, Tim Lee points out, this claim is “nonsense.”

It seems that, once again, CAFC is not getting the Supreme Court’s message clearly. We’ve already gone through this with Myriad and Mayo cases. In Mayo, CAFC twice ruled that diagnostic tests were patentable, even after the Supreme Court gave it an extra chance to correct that. That resulted in the Supreme Court slapping down CAFC and rejecting medical diagnostic patents. Then, CAFC, similarly did the same thing with gene patents, only to be smacked down just last week.

This is a nearly identical situation. CAFC rules one way (“yes, of course this abstract idea/thing of nature is patentable”), the Supreme Court says “are you sure?!? please look at this other ruling,” and CAFC comes back with “yes, we’re sure! patent patent patent!” The last few times that’s happened the Supreme Court has had to smack CAFC down, and it looks like it may need to do so again.

Filed Under: abstract ideas, advertising, cafc, content, drm, on the internet, patent eligibility, patents, software patents, supreme court
Companies: hulu, ultramercial, wildtangent, youtube

Why Does An Unpatentable 'Abstract Idea' Become Patentable If You Add 'On The Internet'?

from the good-question dept

Back in 2009, we wrote about a case involving a company called Ultramercial, which held a broad and ridiculous patent (7,346,545) that effectively covered the process of watching an ad before you could download content (seriously). Ultramercial sued Hulu, YouTube and WildTangent over this. The case went back and forth with an initial ruling that rejected the patent, by noting that it was just an “abstract idea” and abstract ideas are not patentable. As that court ruling noted:

At the core of the ‘545 patent is the basic idea that one can use advertisement as an exchange or currency. An Internet user can pay for copyrighted media by sitting through a sponsored message instead of paying money to download the media. This core principle, similar to the core of the Bilski patent, is an abstract idea. Indeed, public television channels have used the same basic idea for years to provide free (or offset the cost of) media to their viewers. At its heart, therefore, the patent does no more than disclose an abstract idea.

Tragically, CAFC, the appeals court that handles patent matters and has a long history of expanding patent law, reversed the lower court’s ruling and deemed the patent valid. While it didn’t put it in these words specifically, it certainly appeared that the court was saying that any abstract idea can still be patentable if you just make it happen “on the internet.”

In that ruling, the court discusses the fact that “abstract ideas” are not patentable, and notes that it used to use its machine-or-transformation test to determine if something was or was not an abstract idea. However, after the Supreme Court ruled in the Bilski case that this test might not always be appropriate, while failing to say what test would be appropriate, it’s left CAFC with the freedom to make up totally arbitrary rules. And in this case, the arbitrary rule was effectively “we don’t apply the machine-or-transformation test to ‘information age’ inventions.” Why? Because if the inventions aren’t physical, the machine or transformation test no longer applies:

While machine-or-transformation logic served well as a tool to evaluate the subject matter of Industrial Age processes, that test has far less application to the inventions of the Information Age…. Technology without anchors in physical structures and mechanical steps simply defy easy classification under the machine-or-transformation categories.

Shorter version: what would be considered unpatentable abstract ideas in the offline world suddenly become patentable if you add “on the internet” to them.

That doesn’t sound right to lots of people, and thankfully WildTangent is appealing the case and hoping the Supreme Court will hear it. As the petition to the Supreme Court notes, the question presented is:

Whether, or in what circumstances, a patent’s general and indeterminate references to “over the Internet” or at “an Internet website” are sufficient to transform an unpatentable abstract idea into a patentable process for purposes of 35 U.S.C.

Along with the petition, there were also two interesting filings in support, urging the Supreme Court to hear the case. One from Redhat, CCIA and EFF, which goes into great detail about how such broad patentability would seriously harm the open source world, and a strongly worded brief from Google and Verizon (yes, together) about how such a ruling would do serious harm to innovation by allowing all sorts of abstract ideas to be locked up via patent. Hopefully the Supreme Court is willing to listen — and will push back (yet again) on a bad CAFC ruling.

Filed Under: abstract ideas, ads, cafc, downloads, software patents, supreme court
Companies: ccia, eff, google, hulu, ultramercial, verizon, wildtangent, youtube

Court Ruling Opens The Door To Rejecting Many Software Patents As Being Mere 'Mental Processes'

from the nice-to-see dept

Well, this is getting interesting. Last year, when the Supreme Court ruled very narrowly in the Bilski case, without making any explicit statement (as precedent) on overall software or business model patents, many people were frustrated. Here was a situation where the Supreme Court could have drawn a much clearer map, but it declined to do so. Of course, we wondered if this would just mean that another case would have to make its way to the Supreme Court to get a clearer ruling on software patents. In effect, with Bilski, the Supreme Court basically said “this one test you use is fine, but it’s not the only test.” It didn’t say what those other tests should be, but basically left it up to the courts to decide. However, it did reject the specific Bilski patent for being an “abstract” idea, saying that this was not patentable under Section 101 of the Patent Act.

What’s been interesting is that this seems to have emboldened a few judges to apply new or different tests (with clear reasons and caselaw for why they do so)… and some of this is leading to more software patents getting rejected. In a new ruling at the Federal Circuit appeals court (CAFC), the court appears to open up a potentially broad path for rejecting all sorts of bad (mostly software) patents by deciding that the Supreme Court’s Bilski ruling might not have been so narrow after all.

The specifics are pretty down in the patent law weeds, but the key thing is that the court, as the Supreme Court did in Bilski, uses Section 101 of the Patent Act to invalidate some patent claims. This gives the court pretty broad leeway in how patents can be evaluated under that section — again by claiming that they’re merely “abstract ideas,” not patentable under Section 101. Most rulings on patent validity focus on obviousness, prior art or whether or not it meets the basic fundamental rules for how a patent is written. But by opening up Section 101 to wider scrutiny, the court is making it much easier for other courts to reject patent claims, and the court is suggesting that this is a reasonable approach as an alternative test under the Bilski ruling. Basically, CAFC is turning the narrow Supreme Court ruling into a much broader one, and saying to the USPTO and courts that patents on “abstract ideas,” broadly defined, should be unpatentable… and then noting that many “software” ideas may be merely abstract ideas.

It seems like perhaps CAFC is getting the message that there are a ton of bad software patents out there, and using Section 101, it’s just made it a lot easier for the USPTO and the courts to dump a lot of those patents. All the USPTO or courts have do now is show that the software claim is nothing more than an abstract idea. In this case, the claims in question concerned a patent from CyberSource about doing fraud prevention online by matching your transaction information to your IP address to see if that IP was an indication of potential fraud. As the court noted, there’s nothing about doing such a comparison that is anything more than an abstract idea, and, in fact, you don’t need a computer or anything to do this at all. It could just be done by a human being and thus, it’s not patentable under Section 101. Specifically, the court is rejecting it as a mere “mental process.”

It is clear that unpatentable mental processes are the subject matter of claim 3. All of claim 3?s method steps can be performed in the human mind, or by a human using a pen and paper. Claim 3 does not limit its scope to any particular fraud detection algorithm, and no algorithms are disclosed in the ?154 patent?s specification. Rather, the broad scope of claim 3 extends to essentially any method of detecting credit card fraud based on information relating past transactions to a particular ?Internet address,? even methods that can be performed in the human mind

The court further clarifies the ability to reject bogus software patents by dismantling the usual attempts to make a software patent seem legit by saying it happens “on a computer.” Basically, it finds that taking a “mental process” or abstract idea and merely having it happen on a computer is not patentable.

This is potentially a big deal, though you have to imagine it will be appealed. When the Bilski ruling came out, we expected another software patent question would eventually reach the Supreme Court, and this could be an interesting one if the Court decides to take it. In the meantime, though, the USPTO and district court should be on alert that they have pretty broad leeway in rejecting software patents if they’re really just “mental processes” not patentable under Section 101 (even if they’re done on a computer).

Filed Under: abstract ideas, bilski, mental process, patents, software patents
Companies: cybersource