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Facts
Voip Pal wins at PTAB 8-0
Apple appeals PTAB's decision and loses
Judge Koh, in District Court, dismisses case based on her Alice 101 opinion
Voip Pal appeals to Federal Circuit
Amicus Brief submitted to support Voip Pal's appeal
Senate likely to introduce BI-PARTISAN bill to reform 101
another great post
you're welcome
you're welcome
I re-post for the benefit of the shareholders.....the Voip Pal Facebook page happens to have excellent content
Don't worry, there's a lot more than 474 people seeing it...
Among the seven amicus curiae briefs filed Monday with the U.S. Supreme Court in InvestPic, LLC, v. SAP America, Inc., Eagle Forum Education & Legal Defense Fund’s brief argues that the case demands a hearing because the Federal Circuit has added yet another extra-statutory test to the already distorted patentability jurisprudence.
In a decision of May 15, 2018 authored by Judge Taranto, the Federal Circuit found the patent claims of U.S. Patent No. 6,349,291 invalid because they were directed to an abstract idea and lacked an inventive concept necessary to save the invention under 35 U.S.C. § 101.
In the course of its opinion, the Federal Circuit created a “physical realm” test, which is nowhere to be found in 35 U.S. Code Section 101, having been wholly conjured by judges. Such a requirement to be eligible for a patent would render novel, useful, nonobvious inventions unpatentable—purely on grounds outside the statute and ill-suited for the Information Age.
The amicus curiae notes “a vast domain of subject matter that should be patentable” between truly abstract ideas and the physical. This includes, for example, “complex algorithms, software, computer.......
AMICUS BRIEFS ARE HARDLY FRIVOLOUS, LAST DITCH EFFORTS.....RATHER THEY ARE OFTEN EXTREMELY USEFUL TOOLS TO THE COURT'S UNDERSTANDING OF KEY ISSUES.
https://www.facebook.com/VoipPalOfficial/
It's posted on the Voip-Pal Facebook page.
"I asked one former clerk"
So this then becomes generally known fact...
Now I understand
going to post a link so others can see
Generally used? Please give examples....
An excellent Amicus brief has been filed by an independent law firm, in support of Voip Pal's appeal of the Federal District Court's ruling in March based on 35-101.
I will post a link to the brief as soon as it is available.
Think I'll buy more this week.
My comment was perfectly clear. To suggest that Emil thinks the patents are worthless based on merit is ludicrous
Emil was making a cryptic remark about the way in which patents are handled by the American Courts.
He was not specifically referring to the integrity of VPLM's portfolio.
Completely out of context
That can ONLY be proven in court
Until the case is tried and the evidence is heard in court, there is no basis for this statement There are number of experts in telecommunications that believe otherwise.
You are exactly right. The Federal Courts should not be making Judicial Exception regarding eligibility, after the USPTO grants patents and 8 IPRs are won....the case should move to trial to determine infringement and damages.
Washington is beginning to "get it"...
Stronger Patents Act provides injunctive relief for patent owners who win in court....
101 Reform coming soon?
Things are changing.....
Urge the Drafters of the New Section 101 to Support Inventor-Friendly Reform
By Mark Marrello
May 13, 2019
“It is beyond belief that the United States would cripple itself by limiting innovation in these crucial fields. Computer implemented inventions, biotechnology, medical innovations, and other critical fields must explicitly be protected and made patent eligible in the language of section 101.”
https://depositphotos.com/33125311/stock-photo-call-to-action.htmlSenators and Representatives Coons, Tillis, Collins, Johnson, and Stivers recently announced in a press release a proposed framework to fix patent eligibility law in the United States. If written as proposed in the draft framework, section 101 may do harm to the patent system. The senators and representatives are now soliciting feedback on the draft framework. They are likely to take additional action on the framework as soon as early this week.
Please send the following text with any of your edits to IntellectualProperty@tillis.senate.gov.
Honorable Senators and Representatives:
I would like to thank you for your initiative to resolve the 101 mayhem. Many concerns remain with your draft framework.
I applaud eliminating the terms “new and useful” from the current section 101, since “new” is covered in sections 102 and 103, and “useful” is irrelevant. However, I have the following concerns:
Concerning the categories of ineligible subject matter, the Supreme Court created incredible mayhem and caused enormous damage to the patent system by creating its categories of ineligible subject matter (i.e. “judicial exceptions”) and setting the fire. Codifying any categories of ineligible subject matter would reward the arsonist for setting the fire and provide additional fuel for the fire. Any rational person would think that to solve the 101 mayhem one would eliminate the categories of ineligible subject matter just like depriving the fire of fuel would extinguish it. I implore the senators and representatives to see this obvious logic, to not perpetuate the 101 mayhem, and to extinguish the fire.
Concerning the “practical application” test to ensure that the statutorily ineligible subject matter is construed narrowly, this is far from a viable line of defense for inventors in a world in which the courts have proven over at least a decade that they cannot be trusted with interpreting the patent law as written. The Supreme Court outright ignored the law as explicitly written and created its own law illegally when it created the “judicial exceptions” to patent eligibility. I wish we lived in a more perfect world, but given the courts’ long, definitively proven unwillingness and inability to interpret the patent law as written, the only rational solution is to eliminate the categories of ineligible subject matter altogether and not allow the courts the flexibility to make further damage to the patent system.
The concept of what a claim is “directed to” is far too vague and has been proven to be abused by the courts and many USPTO examiners in almost all cases of patent ineligibility. The concept of what a claim is “directed to” is a true disaster since anything can be said that it is directed to something else, and the courts and many USPTO examiners have used this concept to relate matters that do not have any relation. Therefore, it is critical to include in the language of section 101 that the courts and the USPTO must not use the concept of what a claim is “directed to,” but instead use what a claim “explicitly recites.”
Concerning the phrase “simply reciting generic technical language or generic functional language does not salvage an otherwise ineligible claim,” this is perhaps the most dangerous and misleading part of the draft framework and it absolutely must not be included in the final section 101. The Supreme Court in Alice wrongly created this notion to apply only to well established business practices (see the Supreme Court opinion in, 134 S. Ct. 2347 2014). To compound the damage, circuit courts have extended this notion to computer implemented inventions (i.e. artificial intelligence, robotics, autonomous vehicles and devices, image processing, databases, computer/video games, computer simulations, content processing, and many more) that arise out of or are inherently implemented on a generic computer. It is unimaginably irrational to attempt to make computer implemented inventions that arise out of or are inherently implemented on a generic computer patent ineligible simply because they are implemented on a generic computer. Again, I wish we lived in a more perfect world, but the history has definitively proven that the courts cannot be trusted with interpreting this kind of language as written, therefore, the only rational solution is to eliminate this language altogether and not allow the courts the flexibility to cause further harm to the patent system.
Many of the most sophisticated and novel inventions can run on generic computing hardware and do not need specialized computing hardware. For example, facial recognition, speech recognition, language processing, various artificial intelligence applications, sophisticated computer game functionalities, advanced image processing, sophisticated database functionalities, computer simulations, advanced content processing, and many more, do not require anything other than a personal computer, smartphone, or other generic computing hardware. If the proposed “generic computing” language is included in the final section 101, it will exclude many eligible areas of innovation and become a complete disaster. This is the simplest point of all: what computing hardware a computer implemented invention runs on has nothing to do with patent eligibility and, therefore, should be excluded from section 101.
Computer implemented inventions (i.e. artificial intelligence, robotics, autonomous vehicles and devices, image processing, databases, computer/video games, computer simulations, content processing, and many more), biotechnology, medical innovations, and others are fields of innovation critical in the global innovation economy and race for dominance in the world. It is beyond belief that the United States would cripple itself by limiting innovation in these crucial fields. Therefore, computer implemented inventions, biotechnology, medical innovations, and other critical fields must explicitly be protected and made patent eligible in the language of section 101.
You will notice that many of my points are driven by a genuine history-proven fear from the courts’ unwillingness and inability to interpret patent laws as written. Please ponder on this carefully as you cannot ignore the courts’ proven history. In the current attempt to reform section 101, you not only must include carefully written language as you would want it to be interpreted, but you must also account for the “courts’ damage factor,” because whatever language you think is well-written, the courts’ will interpret it in flawed or outright wrong ways. The proof is that there was nothing wrong with the current section 101—it worked fine for decades—until the Supreme Court created the illegal “judicial exceptions”.
Remember where China used to be relative to the United States in innovation ten years ago before Mayo, Alice, and the AIA came into being. China was not even on the radar as an innovation powerhouse. Today, after all the damage done by Mayo, Alice, and the America Invents Act (AIA), China is neck-in-neck with and even ahead of the United States in critical fields like artificial intelligence, biotechnology, medical innovation, and others. One who does not see the trend is blind or influenced by special interests. A partial so-called solution like the proposed draft framework will not reverse this trend or even slightly alter it. If you do not completely incentivize inventors like inventors were incentivized before Mayo, Alice, and the AIA, China will far outpace the United States in critical innovation fields in the next ten years beyond a point of return.
Gentlemen, you carry a great responsibility for ensuring a continued U.S. dominance in the world, which directly depends on the U.S. dominance in innovation. Indeed, you will be directly responsible if the United States falls behind other major powers because of the too limiting patent law, especially section 101. Just like the votes for or against NAFTA and other trade deals defined many politicians’ careers and precluded some from becoming presidents and cabinet members, your choices in the section 101 reform will shape your careers and legacies. You will be remembered as saviors or destroyers of U.S. innovation.
On an issue where the balance is so hard to find and given the enormous importance of section 101 reform for the future of the United States, I would strongly advise a section 101 that is flexible in favor of inventors. If you think about it, it is so much wiser to be at least a little more in favor of inventors than against them, as they are the very people who carry the torch of U.S. innovation. Many inventors have already given up on the U.S. patent system and have quit inventing. The remaining inventors will propel the United States forward or quit based on your reform of section 101.
You underestimate him
The motion to dismiss was granted in the Federal Circuit by Judge Koh - Voip Pal has filed an excellent appeal with the Federal Circuit. The issue is Alice 101.
I expect this decision to be overturned, based on either the merits of the appeal, OR the new legislation that is likely to be brought by Coons/Tillis.
Time will tell
Given the push for reform on Alice 101, we'll see how well that "dismissal" holds up...
Additionally, our legal team's appeal to the Federal Circuit was "superb"
Great post lbird33!
There's no way to know. The Stronger Patents Act, which will provide injunctive relief will now be in Committee and discussed, but it has been formally introduced. The Alice 101 measure has not been introduced yet, as they just took testimony in public hearings in June, but it is clear that there is a great deal of support for change in 101. Silicon Valley will fight it, of course, but public sentiment for SV is waning....
Preparing for 101 Change: Preserving Future Arguments
By Scott McKeown & Matthew Rizzolo on June 4, 2019
Plan Ahead for 101 Change
With the Senate conducting marathon hearings on the subject of patentable subject matter this week (i.e., 35 U.S.C. § 101), and with significant effort to date to move legislation forward, it appears that 101 change is coming — and soon.
Given the imminent legislative reset, what should you do if your patent is invalidated by the Court’s under the current 101 regime?
First, you need to preserve your right to appeal and keep the case alive long enough for Congress to pass its new 101 framework. Depending on where you are in the process, this may require filing an appeal to the Federal Circuit, filing for rehearing or rehearing en banc, or filing for a writ of certiorari to the Supreme Court. Maintaining pendency is essential as it remains unclear whether the new 101 framework will be applied retroactively to existing cases and/or issued but unexpired patents and, if so, how it will be applied.
It seems unlikely that Congress would intend that this legislative framework, if passed, could be used to “revive” patents that have been subject to a final judgment of unpatentability by the Courts (more on that below). But it may opt to apply the law retroactively to any patent cases that are not yet final. It is therefore important that patent owners preserve all eligibility arguments to avoid waiving any rights.
Patent owners may argue that a significant change in law—even during the pendency of an appeal—is sufficient to seek a remand and re-determination under the new regime. For example, we can look to the Federal Circuit’s rulings in the wake of the Supreme Court’s SAS Institute for similar guidance. There, the court recognized that SAS represented a “significant change in law that occurred during the pendency of [the] appeal” and “[p]recedent holds that a party does not waive an argument that arises for a significant change in law during the pendency of an appeal.” Biodelivery Scis. Int’l., Inc. v. Aquestive Therapeutics, Inc., 898 F.3d 1205 (Fed. Cir. 2018) (quoting Polaris Indus. Inc. v. Arctic Cat, Inc., 724 Fed. Appx 948 (Fed. Cir. 2018). Indeed, the Fed Circuit agreed that Biodelivery’s failure to predict that the court would remand for SAS-related issues—even after the PTAB issued new statutory guidance on post-SAS procedures—did not constitute waiver of any arguments under SAS.
Applying similar logic to the current 101 framework, Patent Owners should expect that any change in 101 from Congress may constitute a “significant” change under the law allowing them to move for rehearing and remand under the new regime. Best practices, however, suggest maintaining all arguments to avoid the risk of waiver.
Moreover, it’s also important to keep in mind that claims held to be invalid in district courts are not actually canceled, like those held unpatentable in a PTAB proceeding — the only thing stopping patent owners from re-asserting such claims in the future is the principle of Blonder-Tongue collateral estoppel. If Congress doesn’t ultimately address whether the change in 101 law has a retroactive effect, we could see the situation where claims previously held invalid under current Section 101 law could be re-asserted in district court against new parties or products after legislative changes go into effect. It’ll be interesting to see if any witnesses or Representatives at the upcoming hearings address the potential creation of such “zombie patents.”
Meanwhile back in Washington, D.C.
Senate 101 Hearings Stacked in Favor of Reform
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By Scott McKeown on May 30, 2019
Senate Judiciary Hearings Start Next Week
The Senate Judiciary Committee will conduct back-to-back hearings next Tuesday and Wednesday entitled “The State of Patent Eligibility in America. The marathon fact-finding hearings come on the heels of the proposed 101 framework released last week. Each of the hearings will include three panels of five speakers.
Judging on the lineups for next week, so far the deck is plainly stacked pro-reform.
The hearings kick off on Tuesday with former Chief Judge of the CAFC Paul Michel, and former USPTO Directors David Kappos and Q. Todd Dickinson, all of which are plainly pro-reform. Two academics are also included on the first Tuesday panel, only one of which can be characterized as anti-reform. I wouldn’t expect a dissenting voice here to in any way outshine the views of the former officials.
The second Tuesday panel includes Robert Armitage (formerly of Eli Lilly) and Mark Lemley (Stanford), both of which are plainly pro-reform as is another academic and private practice attorney on the panel. An attorney from the Electronic Frontier Foundation (EFF) — obviously, anti reform — is also included on this panel, but again, the predominant voices here are pro-reform.
The last Tuesday panel includes a collection of professors and policy fellows that are also predominantly pro-reform.
On Wednesday the bar associations lead off on the first panel. An industry group is included that is anti-reform, but that voice will be offset by the unanimity of all bar associations seeking change.
The second Wednesday panel will include the voice of small inventors (pro-reform) and include Phil Johnson (formerly Johnson & Johnson). While there is a software spokesman that will be anti-reform, the predominant view is once again pro-reform.
Finally, the last Wednesday panel will include multiple voices from Bio/Pharma, obviously pro-reform.
So, on one the pro-reform side of the ledger, you have: former Chief CAFC Judge, two former USPTO Directors, all bar organizations, Bio/Pharma, small inventors, and most academics. On the other, you have a handful of industry organizations (viewed as simply biased in favor of weaker patents) and an academic or two.
Perhaps Tech is looking to storm into the last hearing on June 11th guns blazing, after all positions are laid out. But, even so, the writing is already on the wall here. These hearings are fast-tracked, and the resulting legislation will be introduced very quickly thereafter.
At present, Big Tech is sitting on a very weak hand and momentum is quickly building against it.
Apple's lawyers take this VERY seriously....
How Senate IP Subcommittee Witnesses on Patent Eligibility Responded to Questions from Senator Blumenthal
By Steve Brachmann
July 12, 2019
“[N]o empirical or economic study has proven that innovation has increased or prices have reduced as a result of the Alice–Mayo framework. There have been assertions that this has occurred by some commentators and policy organizations, but these have been merely conclusory assertions without any support from economic or statistical studies.” – Adam Mossoff
Through the first half of June, a series of hearings on the state of patent eligibility in America held by the Senate Intellectual Property Subcommittee rendered a variety of interesting exchanges regarding current U.S. subject matter eligibility under Section 101 relating to various important sectors of the U.S. economy. During the second hearing, Senator Richard Blumenthal (D-CT) talked to panelists regarding his concerns about patent abuses in the pharmaceutical industry. During his period of questioning, Blumenthal grilled witnesses on the subject of whether the expansion of subject matter eligibility that would result from the proposed Section 101 draft text would exacerbate issues related to “patent thicketing,” a process by which drug companies attain large patent portfolios covering various aspects of a single drug formulation.
In recent months, Senator Blumenthal has come out strongly against both patent thicketing and “product hopping,” referring to the drug company practice of earning Food and Drug Administration approval for reformulated drugs and preventing market entry to generic drug makers who would otherwise be able to market the old formulation. Both of these activities are targeted by the Affordable Prescriptions for Patients (APP) Act, introduced in early May by Blumenthal and Senator John Cornyn (R-TX). This bill considers both of those activities to be anticompetitive and would enable the Federal Trade Commission to take enforcement action against pharmaceutical companies engaging in them. The APP Act is simply one of a list of drug-related patent bills that have been introduced into either house of Congress so far during the 116th Congress.
Along with Senators Thom Tillis (R-NC) and Mazie Hirono (D-HI), Senator Blumenthal entered a series of questions for the record to be answered by panelists attending the recent patent eligibility hearings. Blumenthal’s sole question was:
“Striking the appropriate balance between encouraging innovation and protecting consumers is a key goal of our patent system.
a.What impact will broadening the subject matter that can be patented have on industry?
b. What impact will broadening the subject matter that can be patented have on consumers?
c. Could the proposed reforms increase consumer prices? If so, in what industries or on what products?”
Although the questions don’t overtly single out the pharmaceutical industry, panelist answers largely indicate that this sector was on most people’s mind while responding.
Tillis asked certain witnesses targeted questions, while Hirono and Blumenthal seem to have sent the same questions to all witnesses.
The following is a collection of excerpts from panelist responses to Senator Blumenthal.
Sherry Knowles, Principal, Knowles Intellectual Property Strategies
“The questions presented refer to the effect of ‘broadening’ the subject matter that can be patented. With kindness, the current issue faced by the Subcommittee on Intellectual Property is not whether to broaden the scope of Section 101. It is whether to restore the application of patent eligibility to what it always has been historically, as repeatedly codified by Congress starting with the Patent Act of 1790… With indulgence from the Senator, I would like to rephrase the questions to refer to ‘restoring’ instead of ‘broadening.’”
a. What impact will broadening the subject matter that can be patented have on industry?
“Restoring patent eligibility to its historic and statutory textual scope will motivate additional medical solutions to treat and diagnose cancer and other serious diseases, which translates to saving and extending lives. This may in turn translate to lower healthcare expenses due to a decrease in long hospital stays, repetitious procedures and extended end of life care… I am a breast cancer survivor whose life was saved by two isolated natural products that would not have been be patent eligible under the Myriad law. If Myriad had been the law in the United States years ago, I would not be giving testimony because I would have already died.”
b. What impact will broadening the subject matter that can be patented have on consumers?
“The impact of restoring the subject matter that can be patented on patients is that new medical solutions may be invented that save or extend their lives. The highest public interest is life itself.
“It is essential to disconnect motivation for creating new medical solutions from drug pricing and distribution. If the drug or diagnostic is not invented because there is no motivation to do so, the pricing and distribution problem goes away because the solution will not exist.”
c. Could the proposed reforms increase consumer prices? If so, in what industries or on what products?”
“The proposed amendment to Section 101 addresses whether and how many new medical solutions will be created by inventors. It does not address pricing.”
Knowles also included additional comments on pending legislation around drug pricing. She wrote:
If Big Pharma has been making robber barons blush, one would think that their profits, and thus as a surrogate, their stock prices would be disproportionate among other industries. Based on publicly available data and research, this is not the case… [O]ver a three-year period, technology stocks have performed much better than pharmaceutical stocks.
“Instead of trying to use the patent system, which is designed solely to motivate innovation and protect investment, to reduce drug costs, I respectfully suggest that Congress look into the staggering cost of drug development and human clinical trials leading to drug licensing by the U.S. FDA.
Hans Sauer, Deputy General Counsel for IP, Biotechnology Innovation Organization
a. What impact will broadening the subject matter that can be patented have on industry?
“[R]eform of Section 101 of the Patent Act will conform U.S. standards with internationally-prevailing best practices, meaning that inventions that are patentable in other industrialized countries will also be patentable in the United States. This will help with the orderly dissemination of innovation, provide legal certainty, and help maintain U.S. technological leadership for investment-intensive innovative businesses in technology areas ranging widely from artificial intelligence, telecommunications, business software, to antibiotics, industrial enzymes, and biomarker-assisted methods of medical therapy.”
b. What impact will broadening the subject matter that can be patented have on consumers?
“The question, at bottom, is whether the U.S. patent system should incentivize businesses to compete with ever cheaper copies of the same basic products, or by out-innovating each other with new, improved, or disruptive innovative products that may be covered by patents… [I]n my opinion the encouragement of investment in innovation that is inherent in a well-balanced patent system leads to more consumer choice in the long run, and better promotes overall welfare for consumers.”
c. Could the proposed reforms increase consumer prices? If so, in what industries or on what products?”
“[T]he kind of invention that is predominantly affected by the current unclear state of Section 101 jurisprudence in the biopharmaceutical space fall more on the side of original or disruptive innovation… For such treatments and tests, the patents that are affected by Section 101 problems are the very patents that make it possible to bring such a product to market in the first place, and absent the availability for patent protection there may not ever be a product to price.”
David Jones, Executive Director, High Tech Inventors Alliance
a. What impact will broadening the subject matter that can be patented have on industry?
“It will harm industry in the tech sector. As written, the proposed legislation will reduce R&D spending and decrease innovation. R&D investment, venture capital funding, and company market capitalization have soared in the wake of the Supreme Court’s eligibility decisions, hitting new records. The increased availability of business method patents will reverse this trend…
“[N]early two-thirds of U.S. patent applications are filed by foreign residents, resulting in the majority of U.S. patents being issued to foreign companies… [B]ecause the rights conferred by U.S. patents are geographically limited to U.S. territory, virtually all enforcement of the patents granted as a result of the proposed changes would be against U.S. businesses.”
b. What impact will broadening the subject matter that can be patented have on consumers?
“U.S. consumers will have fewer choices and higher prices… Additionally, there would be a net reduction in competition.”
c. Could the proposed reforms increase consumer prices? If so, in what industries or on what products?”
“Patent laws are quite literally intended to increase prices. The exclusive rights granted by a patent are intentionally designed to reduce competition and allow patent owners to charge supracompetitive prices… [T]he problem with the proposed bill is that it would extend patenting to non-technological areas where patenting has been shown to decrease innovation. As a result, the proposed reforms would decrease both competition and innovation, leading to fewer choices and higher prices for consumers.”
Adam Mossoff, Professor of Law, Antonin Scalia Law School George Mason University
a. What impact will broadening the subject matter that can be patented have on industry?
“Reliable and effective patent rights are a key factor in economic growth, when combined with stable political and legal institutions and a legal system governed by the rule of law…
“[T]he economic impact of returning patent eligibility doctrine back to its historical role in the U.S. patent system—a mere threshold inquiry or coarse filter before the more searching and stringent patentability requirements of utility, novelty, nonobviousness, and full and enabling disclosure—will be positive…
“The negative economic impact of the Alice–Mayo framework is even more concerning given a global economy today in which R&D investments and venture capital financing that are the lifeblood of innovation can move easily from one country to another in search of more reliable legal security in the fruits of inventive labors.”
b. What impact will broadening the subject matter that can be patented have on consumers?
“The famous insight in economics that ‘there is no such thing as a free lunch’ has only one exception: innovation. Innovation drives economic growth by increasing the supply of new products and services made available to consumers in the marketplace, which reduces prices and increases overall social welfare…
“In the healthcare market, this has meant an ever-increasing supply of cutting-edge medical treatments and increasing availability of older medical treatments that are now ‘off patent…’
“In the high-tech market, this has meant an explosion in new products and services at a rate never before seen before, as exemplified in the mobile revolution of the past two decades.”
c. Could the proposed reforms increase consumer prices? If so, in what industries or on what products?
“My answers to the prior two questions establish that the answer to this question is no…
“[N]o empirical or economic study has proven that innovation has increased or prices have reduced as a result of the Alice–Mayo framework. There have been assertions that this has occurred by some commentators and policy organizations, but these have been merely conclusory assertions without any support from economic or statistical studies.”
Barbara Fiacco, President-Elect, American Intellectual Property Law Association
a. What impact will broadening the subject matter that can be patented have on industry?
“The impact on industry of legislation that restores patent eligible subject matter to the standard intended by Congress will be to encourage investment in life-altering innovations that have changed society and our economy. It will remove the categorical obstacles to the possibility of patent protection in every technology and return judgments on patentability to the merits and details of the invention… The patent system must assure that risky investments in costly development and commercialization of innovation will not be lost due to a lack of patent protection.”
b. What impact will broadening the subject matter that can be patented have on consumers?
“Consumers are the ultimate beneficiaries of an objective, forward-looking patent system that adds the ‘fire of interest to the fuel of genius’ by providing an incentive to risk money and time to develop and make available new products and services… An effective patent system needs to be open to previously unimaginable innovations and not constrained by traditional notions of technology.”
c. Could the proposed reforms increase consumer prices? If so, in what industries or on what products?”
“[I]ncreased investment incentives should result in more innovation and more products for consumers. While many factors may impact the pricing of a particular product, an overall increased rate of innovation will most likely result in more competition to develop products that improve the quality of life for consumers.”
United States Senate showing political will to reform the patent system and protect the United States from foreign patent control. They see what's at stake. It's not just Voip Pal, it's a lot bigger issue...
AS STATED MANY TIMES BEFORE
it tells you that the patent system has been stacked against patent holders, and that infringers take advantage of this system to use IP without paying for it.
this is changing...
Changes Coming To Section 101 Patent Eligibility?
Senators have expressed a serious interest in patent reform -- that is, strengthening the rights of patent holders.
By KRISTA L. COX
Apr 25, 2019 at 11:42 AM
Earlier this month, U.S. Senators Tillis (R-NC) and Coons (D-DE), the Chair and Ranking Member of the (newly revived) Senate Judiciary Subcommittee on Intellectual Property and Representatives Collins (R-GA), Ranking Member of House Judiciary, Johnson (D-GA), and Stivers (R-OH) released a “framework” on Section 101 patent reform. While legislative language has yet to drop, here are some quick thoughts on the “framework” document.
First, keep in mind Senators Tillis and Coons have both expressed a serious interest in patent reform and it’s always been clear that such reform would take the shape of strengthening the rights of patent holders. Indeed, according to Tillis, the senators requested re-instatement of the Subcommittee on IP to specifically address patent reform and both have been critical of SCOTUS decisions limiting patentability. In particular, Tillis and Coons have targeted Section 101, the portion of the Patent Act addressing subject matter eligibility and have already engaged stakeholders on this issue. The release of the framework document and much of the content is, therefore, not a surprise.
Over the past several years, SCOTUS has addressed patent subject matter eligibility in several cases, often unanimously reversing the Federal Circuit. For example, in Mayo v. Prometheus (a method of giving a drug to a patient then using measurements to determine whether the dosage needs to be increased or decreased was directed to natural law and not patentable subject matter); Association for Molecular Pathology v. Myriad Genetics (isolated DNA is a product of nature and, as such, ineligible for patent protection); and Alice Corp. v. CLS Bank International (computer-implemented process covering abstract ideas was not enough to transform a non-patentable idea into patentable subject matter), SCOTUS unanimously ruled against patent eligibility for the patents at issue. It is under this landscape that patent holders have lobbied Congress to “fix” the Patent Act, claiming that SCOTUS’s decisions are anti-innovation.
The released framework proposes to amend Section 101 by having a defined, closed list of subject matter that is not eligible for patent protection. In other words, everything would be subject-matter eligible for a patent unless it fell under a specific exclusion. The framework includes several categories of potential exclusions (though it says “might include” and we can certainly expect lobbying to narrow or remove some of these): 1) fundamental scientific principles; 2) products that exist solely and exclusively in nature; 3) pure mathematical formulas; 4) economic or commercial principles; and 5) mental activities. Some of these exclusions appear to target recent SCOTUS rulings on patent eligibility. For example, the isolated BRCA genes discovered in the Myriad Genetics case may not fit under the definition of “products that exist solely and exclusively in nature,” depending on how final language is crafted, since isolated DNA exists as part of a larger sequence in nature. Narrowly drawn exclusions could also target Mayo v. Prometheus and Alice Corp. The framework explicitly states an intention to also include a “‘practical application’ test to ensure that the statutorily ineligible subject matter is construed narrowly.” This approach would eliminate judicially created exceptions to subject matter eligibility through a closed and narrow list.
Another proposed change to Section 101 would be to focus eligibility solely on the utility requirement, removing the current requirement that the invention or discovery represent a “new and useful” process or article. This change would lower the threshold for eligibility but would not eliminate the novelty requirement. Instead, once determined to be eligible, the invention or discovery would also need to demonstrate the conditions for patentability thresholds in Sections 102 and 103. Section 102 clearly establishes that the invention must meet a novelty standard. Section 103 provides the non-obvious requirement. Ultimately, this change may not make a huge difference since inventions that are not new could still be rejected under a Section 102 analysis.
While legislative language stemming from this framework will likely create greater clarity and could promote investment in the patent industry, exceptions cast too narrowly could potentially lock up fundamental building blocks that are currently not patent eligible (such as isolated DNA). Even with a narrow, closed list of non-patent-eligible subject matter, courts could still find that inventions or discoveries outside that list are not eligible based on Article I, Section 8, Clause 8 of the Constitution. The Constitutional rationale for the intellectual property system is “to promote the progress of science and useful arts,” which SCOTUS has repeatedly pointed out, serves as both a grant of Congressional power, as well as a limitation. If the closed list of exclusions are deemed to be too narrow, a Constitutional challenge could emerge.
https://abovethelaw.com/2019/04/changes-coming-to-section-101-patent-eligibility/
There NO guarantees -but it is CRYSTAL CLEAR that there is a groundswell in Congress to address serious issues at the PTAB, restore injunctive relief, and Alice 101
If Alice is repealed everything changes
Good news for patent owners - more to come - thank you to IP Watchdog for this important reporting
https://www.ipwatchdog.com/2019/07/10/coons-stivers-reintroduce-measure-make-u-s-patent-system-stronger/id=111132/?fbclid=IwAR16xhSUaulwiZDoXLiaZh9TKBWyey4wMmPWcQelQtJ76J1znCLytBDY6R0
Coons and Stivers Reintroduce Measure to Make the U.S. Patent System STRONGER
By Gene Quinn
July 10, 2019
“Without the ability for a patent owner to obtain an injunction, attorneys for infringers commit malpractice if they advise taking a license.”
Congressman Stivers.
Senator Chris Coons (D-DE) and Congressman Steve Stivers (R-OH) reintroduced the STRONGER Patents Act of 2019 today in an event on Capitol Hill. Coons first introduced the STRONG Patents Act in 2015, which then became the STRONGER Patents Act in 2017. This latest iteration, like the iterations before, seeks to take a number of steps to strengthen patent protections and promote American innovation. Coons, Stivers, Representative Mazie Hirono (D-HI) and Representative Bill Foster (D-IL) gave remarks today, followed by a number of industry, inventor, business and university representatives who support the legislation. The bill is also being co-sponsored by Senator Tom Cotton (R-AR). Both Coons and Foster noted the “huge ideological spectrum” represented by the various members of Congress who are supporting the bill.
Senator Coons.
“The STRONGER Patents Act recognizes the critical nature of the patent system and will help reverse a troubling trend of legislation and litigation that has weakened it over the past decade,” said The Alliance of U.S. Startups and Inventors for Jobs (USIJ) Executive Director Chris Israel in a statement issued earlier today. “The STRONGER Patents Act will make pragmatic and impactful improvements to U.S. patent law that will increase innovation, spur investment, protect U.S. intellectual property and make American more competitive.”
Innovation Alliance Executive Director Brian Pomper also issued a statement noting there has been an “alarming decline” in the U.S. patent system in recent years and that “the STRONGER Patents Act takes critical steps to strengthen patent protections and promote American innovation and job creation.”
I agree with them, and hope that the third time is the charm for Senator Coons.
Bye Bye, eBay
While there have been several changes from previous iterations of the bill, perhaps the most important provision contained within the bill has been retained; that provision relates to injunctions for victorious patent owners who have proved infringement and who have also withstood all validity and other challenges to their patents.
Section 106, titled “Restoration of Patents as Property Rights”, would amend Title 35 to add a new 35 U.S.C. 283(b), and would restore the presumption of injunctive relief upon a finding that a patent is both valid and infringed. The language in the STRONGER Patents Act of 2019 reads:
(b) INJUNCTION — Upon a finding by a court of infringement of a patent not proven invalid or unenforceable, the court shall presume that— (1) further infringement of the patent would cause irreparable injury; and (2) remedies available at law are inadequate to compensate for that injury.
If enacted, this provision would essentially overrule the U.S. Supreme Court’s decision in eBay v. MercExchange, 547 U.S. 388 (2006). In eBay, the Supreme Court ruled that the presumption that an injunction should issue to a victorious patent owner was inappropriate and that courts needed to apply the familiar four-part injunction test. This has led to permanent injunctions being overwhelmingly denied since eBay, which is ironic given that a patent is merely an exclusive right while an injunction, like the patent grant itself, is an order from a court to a defendant that has already lost that they must not engage in certain activities already prohibited by the patent grant.
The language of the STRONGER bill presumes that two prongs of that four-factor test weigh in favor of the victorious patent owner.
Left Toothless
In a truly Dilbertesque manner, after eBay a patent owner has an exclusive right up until the point they have prevailed in litigation. Once they have prevailed in litigation against a defendant that has been adjudicated to infringe and having withstood all defenses, the patent owner no longer has an exclusive right because there is no entitlement to an injunction. And injunctions are typically denied.
Post-eBay, patent owners do not have the right to exclude, period. Without the ability to get an injunction, infringers have the right to use and continue using, and that means the U.S. patent system has been transformed into a compulsory licensing system. Patent owners are not in control. The tortfeasor infringer is the party in control. And without even the threat of an injunction, they have no incentive to license.
This is not how the law is supposed to work, and the STRONGER Patents Act would return much needed sanity and recognize that infringement causes irreparable damage and monetary damages are insufficient to compensate patent owners who are supposed to enjoy exclusivity. Indeed, the STRONGER bill Indeed, it would return patent law to fundamental principles of American law, which seeks to incentivize parties to resolve matters with arms-length negotiations and outside of the courts. The law is distorted and misstructured if parties are driven to the courts to resolve disputes because the law interferes with private resolution.
The Coase Theorem
The theory that law should maximize certainty and minimize transaction costs in order to facilitate an efficient, arms-length negotiation of rights is known as the Coase theorem. The Coase theorem is attributed to Nobel Laureate Ronald Coase. According to Coase, obstacles to bargaining and/or poorly defined property rights lead to an inefficient marketplace.
The wisdom of Coase can aptly be demonstrated by the current plight of the U.S. patent system. Prior to 2006, a victorious patent owner was typically the recipient of an injunction. That, of course, makes perfect sense since a patent is nothing more than an exclusive right that quite literally grants nothing more to the owner than the right to exclude others from making, using, selling, offering for sale or importing that which is claimed. Without the right to exclude, a patent is worthless. And without an injunction, infringers cannot be made to stop, so they don’t.
The disaster brought into being when a marketplace is gerrymandered to make arms-length negotiation impossible is something to behold. Instead of patents being a property right we have gone to patents being less than a paper tiger.
Restoring Sanity to the Patent System
Without the ability for a patent owner to obtain an injunction, attorneys for infringers commit malpractice if they advise taking a license. After all, patents can be challenged at the PTAB where many will fall. Those that survive can be litigated again in district court, and serially challenged by others at the PTAB. If the patent owner wins, there is always an appeal, and likely a retrial given the Federal Circuit reversal rate. If the patent owner wins monetary damages the award will be remitted (i.e., lowered) because the Federal Circuit never likes awarding 100 cents on the dollar to patent owners. Of course, all of this will take a decade and how many patent owners have the funds to fight for a decade? They will give up.
Taking a license is indeed malpractice when it is so easy to challenge patents, so easy to tie up patent owners indefinitely, so difficult to get adequate damages, and virtually impossible to get an injunction.
The law is supposed to maximize certainty and minimize transaction costs in order to facilitate an efficient, arms-length negotiation of rights. That is what keeps disputes out of court, or if they make it to court, it is what gets disputes to settle. eBay has so significantly tilted the playing field that arms-length negotiations of rights is impossible, which is why so many attorneys who represent infringers brag about simply throwing away, or circular filing, inquiry and notice letters they receive from patent owners. Infringers have no risk. They cannot be shut down.
The STRONGER Patents Act is an extremely important piece of legislation that would return sanity to the U.S. patent system. The most needed and important provision that would immediately return the system to an equilibrium between patent owners and infringers is overruling eBay, which is long overdue.
Gene Quinn
Gene Quinn is a Patent Attorney and Editor and President & CEO ofIPWatchdog, Inc.. Gene founded IPWatchdog.com in 1999. Gene is also a principal lecturer in the PLI Patent Bar Review Course and Of Counsel to the law firm of Berenato & White, LLC. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. Gene is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit.
nope - the Federal Circuit is not making these moves to vacate based on anything other than good patent law...
more to come -I think the tide is shifting against these arbitrary judicial exceptions that strip patent owner rights
Federal Circuit Sets Higher Standard For Early Alice Motions
In Cellspin Soft, Inc. v. Fitbit, Inc. et. al., the Federal Circuit recently held that a lower court wrongly invalidated four patents under Alice because they contain an inventive concept. The four patents at issue share the same specification and generally relate to connecting a data capture device, e.g., a digital camera, to a mobile device so that a user can automatically publish content from the data capture device to a website. Defendants had moved to dismiss the case, arguing that the patents are ineligible for patent protection under 35 U.S.C. § 101. The district court granted these motions and subsequently awarded attorney fees. However, the Federal Circuit concluded that the district court misapplied Federal Circuit precedent in granting Defendants’ motions to dismiss, and vacated the district court’s ruling.
The district court had granted Defendants’ motions based on the Supreme Court’s two-step framework for analyzing patent eligibility under Alice. Step one asks whether the claim at issue is “directed to . . . [a] patent-ineligible concept[],” such as an abstract idea. If so, a court then proceeds to step two, which the Supreme Court has described as “a search for an ‘inventive concept’—i.e., an element or combination of elements that is ‘sufficient to ensure that the patent in practice amounts to significantly more than a patent upon the [ineligible concept] itself,” or put another way, something more than “well-understood, routine, conventional activities previously known to the industry.”
As to step one, the district court in this case concluded that the asserted claims are directed to the abstract idea of “acquiring, transferring, and publishing data and multimedia content on one or more websites.” The district court explained that the asserted claims use “generic computer hardware and software components” to automate the conventional, manual process of transferring data from one device to another. It therefore concluded that Plaintiff failed to show that the data acquisition, transfer, and publication described in the patents represents something more than a simple automation of a conventional (manual) process, i.e., an abstract idea.
As to step two, the district court found that the asserted claims do not recite an “inventive concept.” In particular, the district court concluded that the various claim elements, e.g., the data capture device and Bluetooth enabled mobile device, represent generic computer components performing “as expected according to their ordinary use.” The district court therefore concluded that none of the asserted claims, from any of the asserted patents, were patent eligible.
The Federal Circuit applying this same two-step framework, agreed with the district court that the asserted claims are directed to an abstract idea. However, the Federal Circuit also found the district court erred with respect to the inventive concept inquiry by ignoring allegations that, when properly accepted as true, preclude the grant of a motion to dismiss.
In regards to step one, the Federal Circuit found the asserted claims are drawn to the idea of capturing and transmitting data from one device to another. Agreeing with the district court, the Federal Circuit reasoned it has consistently held that similar claims reciting the collection, transfer, and publishing of data are have been found to be directed to an abstract idea. The Federal Circuit then concluded that these cases therefore compel the conclusion that the asserted claims are directed to an abstract idea as well.
Moving on to step two, the Federal Circuit first reasoned that plausible and specific factual allegations that aspects of the claims are inventive can be sufficient to defeat a motion to dismiss when not wholly divorced from the claims or the specification. Specifically, “[a]s long as what makes the claims inventive is recited by the claims, the specification need not expressly list all the reasons why this claimed structure is unconventional.” The Federal Circuit then found in this case the Plaintiff made specific, plausible factual allegations about why aspects of its claimed inventions were not conventional, e.g., its two-step, two-device structure requiring a connection before data is transmitted. The district court erred by not accepting those allegations as true.
Next, the Federal Circuit also reasoned that factual disputes about whether an aspect of the claims is inventive may preclude dismissal at the pleadings stage under § 101. Here, accepting Plaintiff’s allegations as true, the Federal Circuit could not conclude that the asserted claims lack an inventive concept. Plaintiff specifically alleged that using HTTP at a specific location, here at the intermediary mobile device, was inventive. It further alleged that establishing a paired connection before transmitting data was also inventive. The Federal Cicuit held it had no basis, at the pleadings stage, to say that these claimed techniques, among others, were well-known or conventional as a matter of law.
Moreover, even assuming that Bluetooth was conventional at the time of these inventions, implementing a well-known technique with particular devices in a specific combination, like the two-device structure here, can be inventive. Plaintiff specifically alleged that its implementation of Bluetooth, using a two-step, two-device structure, was inventive. The same is true for the claimed combination of steps—sharing data only after a certain step is performed, using HTTP at another particular step, etc. Furthermore, Plaintiff did more than simply label these techniques as inventive. It pointed to evidence suggesting that these techniques had not been implemented in a similar way. This sufficiently alleges that Plaintiff has claimed significantly more than the idea of capturing, transferring, or publishing data. Thus, accepting Plaintiff’s allegations as true, the asserted claims recite a specific, plausibly inventive way of arranging devices and using protocols rather than the general idea of capturing, transferring, and publishing data.
Therefore, the Federal Circuit found the district court erred by not accepting these well-pleaded allegations as true with respect to whether the asserted patents capture, transfer, and publish data in a way that is plausibly inventive. And, accepting those allegations as true, the Federal Circuit could not say that the asserted claims are ineligible under § 101 as a matter of law. The Federal Circuit therefore vacated the district court’s dismissal and its subsequent award of attorney fees.
This case continues a recent trend of making Section 101 challenges under Alice more difficult to win early in a case. It also broadens the type of evidence that can be used by patent owners to defeat a patent eligibility motion to dismiss. Specifically, “plausible and specific factual allegations that aspects of the claims are inventive are sufficient.” And, “as long as what makes the claims inventive is recited by the claims, the specification need not expressly list all the reasons why this claimed structure is unconventional.” Finally, this case shows that even five years out from Alice, patent eligibility will still continue to be an evolving body of law.
The times, they are a changin'......
VirnetX Wins Patent Appeal in Apple Case at US Court of Appeals for the Federal Circuit
PR Newswire PR NewswireJuly 8, 2019
ZEPHYR COVE, Nev., July 8, 2019 /PRNewswire/ -- VirnetX™ Holding Corporation (NYSE AMERICAN: VHC), an Internet security software and technology company, announced today that the US Court of Appeals for the Federal Circuit issued an opinion today in Appeal Nos. 2017-1368, 2017-1383 as to two decisions issued by the United States Patent & Trademark Office's Patent Trial and Appeal Board that had found unpatentable claims of U.S. Patent Nos. 6,502,135 and 7,490,151. The decision vacated and remanded both of the decisions, agreeing with VirnetX including (1) the Board abused its discretion in denying VirnetX the opportunity to file a motion for additional discovery as to real party-in-interest issues; (2) many of the Board's positions as to the prior art lacked substantial evidence; and (3) the Board misconstrued the claims.
"We are extremely pleased with the Federal Court's decision which vindicates many of VirnetX's arguments about the Patent Board's decisions," said Kendall Larsen, VirnetX CEO and President. "This decision comes on the heels of the Federal Circuit's prior decision in Appeal No. 2018-1751 on June 28, 2019 as to another Board decision against U.S. Patent No. 7,418,504, where the Board's finding of unpatentability as to claims 5, 12, and 13 was also vacated."
About VirnetX
VirnetX Holding Corporation is an Internet security software and technology company with patented technology for secure communications including 4G LTE and 5G security. The Company's software and technology solutions, including its secure domain name registry and Gabriel Connection Technology™, are designed to facilitate secure communications and to create a secure environment for real-time communication applications such as instant messaging, VoIP, smart phones, eReaders and video conferencing. The Company's patent portfolio includes over 115 U.S. and international patents and over 50 pending applications. For more information, please visit www.virnetx.com
that post is 100% incorrect. the motion to dismiss was based on 101. When Alice is reversed, or the Fed. Circuit rules to overturn, it will matter GREATLY