Is it patent ELIGIble? Better Go ASK ALICE

IS IT ELIGIBLE FOR A PATENT?
BETTER GO ASK ALICE
MARK COURTNEY
THE COURTNEY FIRM
MARK.COURTNEY@THECOURTNEYFIRM.COM
214-886-1067
WHAT HAPPENED IN ALICE?
• U.S. SUPREME COURT June 2014
• UNANIMOUS OPINION 9-0
• Claimed invention, a method of settling transactions using an
intermediary accounting scheme, (ESCROW), is declared NOT PATENT
ELIGIBLE.
• REASONING: AN ‘ABSTRACT IDEA’ IS NOT PATENT ELIGIBLE
• OK, SO-WHATS AN ABSTRACT IDEA?
• WE DO NOT KNOW ….
• AND THERE’S THE RUB!
WHY SO MUCH NEWS?
• ALICE Effects existing patents retroactively
• Prediction – Federal Judge – if ALICE is held invalid under 101
it will mean the “death of hundreds of thousands of patents”
•
Media Response to Alice decision
•
“Justices Deny Patent to Business Methods”– New York Times June
19
•
“Bad Day for Bad Patents: Supreme Court Unanimously Strikes Down
Abstract Software Patent “ Electronic Frontier Foundation
•
“Supreme Court Narrowly Limits Business Method Software Patents”
-eweek
WHAT IS THE REAL IMPACT OF ALICE?
WHY IS ALICE SO IMPORTANT?
• Patent litigation is now dominated by the NPEs/PAEs- 62%
of cases filed
• Patent litigation costs defendants $30 billion with a B per
year
• Did ALICE slay the troll?
• If so- What else did we lose?
KEY FACTS ABOUT PATENTS
• A Patent is the only way to protect new IDEAs
• Software can be copyrighted, but
• For copyright protection, copying has to be direct
• Copyright infringement only protects the written words!
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Patents are property, can be sold, licensed, traded, or given away
Patents provide security interest for financing startups
Enforcement is voluntary - and expensive
No innocent infringer defense. No “intent” element.
Royalty can extend to a percentage value of products
WHAT IS SUBJECT TO PATENT
PROTECTION?
•
•
Constitution Article 1 Sec. 8 Cl. 8
• “To promote the Progress of Science and useful Arts, by securing
for limited Times to Authors and Inventors the exclusive Right to
their respective Writings and Discoveries” – U.S. Constitution
35 USC 101-
• 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.
FOUR SEC. 101 “CATEGORIES”
• “…any new and useful process, machine, manufacture, or
composition of matter..”
• BUT WHAT IS SOFTWARE?
•
Early idea: Written material – proper protection is COPYRIGHT not
PATENT
•
Legal Concept- changing the program in a computer changes the
computer into a new machine
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Recent history – PROCESS is the key concept
WHAT IS THE SCOPE OF 35 USC SEC. 101?
•
1952 Patent Act Congressional Intent:
• “anything under the sun that is made by man”
• EXAMPLES
• Bacteria- Diamond v. Chakrabarty – U.S. Sup. Ct. (1980)
• 5-4 decision – a nonnaturally occurring manufacture- a product
of human ingenuity-is patent eligible
• Oyster- Ex parte Allen- PTO BPAI (1987)
• Oyster that is chromosomally altered in a lab, patentable under
101
• Harvard mouse- U.S. Pat. No. 4,736,866 (1988)
• transgenically modified- patentable
WHAT ARE THE LIMITS TO SEC. 101?
•
“Judicial Exceptions” to 101: Judge made rules
• Laws of Nature
• Idea in itself
• Scientific Truth
• Mathematical expressions
• Mental Processes
• Abstract Ideas
• Example: Anti Gravity Boots – idea in itself or abstract idea
HISTORY OF PATENTING SOFTWARE
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Early cases 1970s – software probably NOT patentable
•
Gottschalk v. Benson – Supreme Court 1972
•
Method for converting BCD (e.g. 0-F hex) to binary
• Supreme Ct: Claims directed to an algorithm are not patentable.
• Claims not limited to “a computer, special purpose machine, or
transforming a substance” (These became the magic words) and no
clear guidelines
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BUT- Sup. Court suggests that computer executing software
can be patentable if claimed correctly
RESULT: Patent lawyers start figuring it out
HISTORY OF PATENTING SOFTWARE
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Parker v. Flook (Supreme Court 1978)
•
Method of calculating alarm limits in catalytic converter using new
algorithm
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Claims recite additional steps after algorithm used
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Additional steps are conventional
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Added steps not enough to transform the algorithm into
patentable subject matter
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“Inconsequential post solution activity” is not enough
Proper analysis is to ignore the algorithm, consider only the added
steps
Sup. Ct. Opinion suggests Congress should act considering software
1981- SOFTWARE BECOMES PATENTABLE
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Diamond v. Diehr (U.S. Sup. Ct. 1981)
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Invention: use of Arhennius equation, with computer software, to control automated
molding tool for rubber compound
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Invention included modifying mold tool so that internal temperatures can be
monitored without opening mold
Computer used to iteratively recalculate curing equation
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PTO: No patent, because software is claimed.
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SUPREMES HELD: Patent is NOT INELIGIBLE just because invention uses software
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Steps that transform a substance make claims patent eligible
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Consider claim as a whole, not pieces
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“Machine or transformation” test
HISTORY OF PATENTING SOFTWARE
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1982 NEW COURT: CAFC- new appellate court– in part to make patent
law uniform – all patent appeals go to CAFC
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In re Alappat – 1994 – CAFC
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Invention rasterizes data to display visual data
•
Step can be performed on a computer
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No transformation of a substance, and CAFC endorses idea that a
computer running a new program is a new machine
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RESULT: SOFTWARE can be patented when running on a computer
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In re Lowry-data structure patentable, Beauregard- program on a
computer readable medium is patentable
1995 PTO IS FINALLY DEFEATED BY THE
CAFC
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1995- PTO issues “Guidelines to Examiners” on how to examine
software claims
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New industry is born- the software patent lawyer
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New patent office commissioner appointed from software
industry
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The big question is: How far can we go??
1998 -BUSINESS METHOD PATENTS
ARRIVE
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State Street Bank v. Signature Financial (CAFC 1998)
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Giant CAFC case
• Greatly expands availability of software patents
• Creates “business method” patents
• Modifies the “machine or transformation” test to include
“ Methods that have a practical application and if it produces a
useful, concrete and tangible result.“
State Street Patent was on financial method of managing mutual
funds
Created new opportunity – “method of doing business” patents.
THE SUPREMES FINALLY SPEAK AGAIN
(2010)
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Bilski v. Kappos (2010): After a 30 year hiatus, the Supremes return to the question of
what the scope of Sec. 101 should be.
•
CAFC , in the case below , had stated that the “machine or transformation test” should
be the sole test for patent eligibility under Sec. 101.
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CAFC thus effectively overruled its own precedent in State Street Bank.
•
Supreme Court affirms (thus no patent for Bilski’s method of hedging risk in
commodities markets, such as energy prices) because the claims are directed to an
“abstract idea”
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BUT Supremes rejected CAFC reasoning. Supremes return to the “abstract idea“
analysis of Parker, Flook, Diehr
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Business Methods are not “per se” unpatentable, BUT are subject to other requirements
of the Patent Act, novelty, obviousness, and definiteness
THE SUPREMES TRY TO FIND A USEFUL TEST
FOR SEC. 101
•
Mayo v. Prometheus (Sup. Ct. 2012)
•
Method for determining proper dose of medication where dosage is
difficult to determine – varies with individual
•
Steps are mostly conventional – dosage adjustment
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Final step could be performed as a mental process
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Analysis: If a claim covers a natural phenomenon or law of nature, then
the claim must be tested to see if it “adds enough” to transform the
claims to patent eligibility
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The added steps must “do more” than recite conventional steps
TYPES OF PATENT OWNERS
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Traditional: Practicing Entities: e.g. Texas Instruments, Apple, Universities, Labs
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e.g. NTP v. RIM – Blackberry litigation
Again, litigation after failed licensing negotiation, many companies signed up
Previously Practicing Entities: e.g. Rockstar
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e.g. Texas Instruments v. Hyundai; Apple v. Samsung
Non Practicing Entities: (NPEs)- inventor who cannot commercialize invention asserts
patent
•
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Typical case: failure of licensing negotiations leads to litigation
Failed business (Nortel) sells or collects patents for licensing
Old Revenue model – license key industry participants (Apple, Nokia) at very high cost
(many millions) per license – litigation sometimes occurs and is a long process
NEW TYPES OF PATENT OWNERS, 21ST
CENTURY
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Patent acquisition entities (PAEs), patent aggregators
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Companies formed for the sole purpose of asserting patents
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May or may not have any inventors working there
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May or may not have any products, probably not
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Defensive patent aggregation, patent auctions, contingent fee litigation
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Typical case: Intellectual Ventures
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Non Practicing Entity spends money to acquire patents, often with a small up front fee
and later sharing the “tail” with the inventor
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Little or no attempt to negotiate, send demand letter, then litigation
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New model- go after many targets with license priced at below “litigation cost”
WHO IS THIS MAN?
MEANWHILE…
OBAMA TAKES ON THE TROLLS
WHITE HOUSE ACTIONS
FIRST TRY: AMERICAN INVENTS ACT (AIA)
2011
• Moves US to “first inventor to file” procedure- thereby expands prior art
• Creates new “in house” PTO patent review procedures (Inter Partes Review,
Post Grant Review)- similar to litigation but cheaper and faster
• AIA Creates “1 patent -1 defendant” rule for patent filings
• Intent: make patent litigation more difficult for trolls
• Actual Impact: Number of patent cases grows very quickly
• RESULT: Patent trolls file many more cases – at a slight increase in cost to
trolls
STILL, IN 2012, TROLLS COST $29
BILLION
New study, same authors: patent trolls cost economy $29
billion yearly- arstechnica.com
OBAMA – 2013 – AGAIN
ACTIVELY ADDRESSES PATENT TROLLS
• June 4, 2013 – Executive Action Memo –updated February 2014
• Legislative recommendations asks Congress to specifically address
patent trolls
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EXECUTIVE BRANCH DOESN’T WAIT FOR CONGRESS
Specific directives to the PTO to limit “functional claiming”
Strengthen enforcement of ITC Exclusion Orders
Make identification of “Real Party in Interest” easier
PTO creates web help pages for defendants receiving demand letters
• !! Patent Office is TAKING SIDES
PRESIDENT OBAMA WANTS YOU
TO REMEMBER: (GOOGLE HANGOUT 2013)
SO, IN THIS SETTING, NOW COMES ALICE
• Alice v. CLS Bank Supreme Court June 2014
• US Pat No. 5,970,479 + 3 other patents
• Patents originally filed 1993- patents were written prior to In re
Allapat, State Street Bank
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Method of automating escrow in settling transactions
Claims don’t expressly require a computer (but specification does)
History: Dist. Ct. – Patent held invalid under 101, after Bilski
On appeal CAFC, 10 judge panel, issues 7 different opinions
CAFC Judge Rader’s dissent – “ this case (that Alice patent is invalid
under Sec. 101) is the death of hundreds of thousands of patents”
SUPREME COURT OF THE UNITED STATES
(SCOTUS)
WHAT IS
THE
YOUNGEST
AGE?
ALICE PATENT IS FOR A METHOD
FOR ESCROW IN SETTLING TRANSACTIONS
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Dist. Ct. – citing 2010 Bilski decision by Supreme Court, finds
the patent invalid as claims directed to an abstract idea
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First CAFC decision, 3 judge panel, finds for the patent owner,
holds that the claims are not “clearly directed” to an abstract
idea
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Rehearing en banc- 10 judge panel at CAFC issues 7 different
opinions, majority says patents are invalid, “abstract idea”
•
ALICE patent is 139 pages, with 101 drawing pages, and for a
software patent , pretty detailed- claims are long and varied
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ALICE takes it up to the Supremes – can’t blame them!
ALICE AND THE SUPREMES
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Decision issued June 19, 2014 - UNANIMOUS OPINION 9-0
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The words “software” or “business method” DO NOT APPEAR in the
decision
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Decision is keyed on the “judicial exceptions” – abstract ideas, laws of
nature, natural phenomenon
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There is a balance between risk of “pre-emption” of “basic building
blocks” and “application” of the “building blocks” to a “new and useful
end” that is a “patent eligible” invention
ALICE AND THE SUPREMES
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KEY CONCEPT:
• MAYO test extends to all categories of the judicial exceptions
• DO the MAYO 2 step for patent eligibility
• 1) Does the claimed invention invokes one of the “judicial exceptions”?
• IF SO
• 2) does the claim recite elements that “transform” the ineligible abstract
idea into a patent eligible subject matter?
WAIT A MINUTE- WHAT IS AN ABSTRACT
IDEA?
• Justice Thomas refuses to tell us!
• “ In any event, we need not labor to delimit the precise contours of the “abstract idea”
category in this case”.
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ALICE claims : “Like the risk hedging in Bilski, the concept of intermediated settlement
is a “fundamental practice long prevalent in our system of commerce.”
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“It is enough to recognize that there is no meaningful distinction between the concept
of risk hedging in Bilski and the concept of intermediated settlement here”.
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PATENT LAWYERS ARE CONFUSED HERE – is it abstract idea, or OLD?
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“I will know it when I see it” – sounds like the old Supreme Court obscenity test
ANALYSIS SEEMS WRONG! The Patent Act has 2 other key provisions for ideas that are
“old” – not 101.
“BAD FACTS MAKE BAD LAW “
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ALICE corp. was an NPE that sued major banks – ALICE is a TROLL.
•
TROLLS ARE BAD (President Obama said so…)
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Dist. Ct. decided the case under 101, following Bilski
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In Bilski, The Sup. Court held that “long standing practices” are “abstract ideas”.
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?? The Patent Act already has other provisions for ideas that are “old”
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35 USC Sec. 102 requires the claims to be unanticipated
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“Long-standing methods” are clearly in the prior art! And covered by these
provisions, not 101!
35 USC Sec. 103 requires the claims to be unobvious to one skilled in the relevant
art at the time of the invention
Supremes have ruled, however, so that’s the law now!
CAN WE MAKE SENSE OF ALICE?
IT IS LOGICALLY IMPOSSIBLE TO FIND
THAT “FINANCIAL TRANSACTIONS” ARE
“ABSTRACT IDEAS”
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Not algorithms
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Not laws of nature
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Not idea in itself
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BUT because these are “long standing practices” the SUPREMEs
are labeling them “abstract ideas”
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Why?
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SUPREMEs get the right result- maybe for the WRONG reason
ALICE DOES NOT APPEAR TO KILL ALL
SOFTWARE PATENTS
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Sup. Ct. “There is no dispute that a computer is a tangible system (in
101 terms, a machine) or that many computer implemented claims are
formally addressed to patent eligible subject matter.”
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“In Diehr, we found the claims patent eligible because they improved
an existing technological process”
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Recitation of hardware by ALICE is “purely functional and generic”.
Warning: Do not interpret 101 in ways that make the outcome
“depend simply on the draftsman’s art”
WHAT HAPPENS AFTER ALICE?
PTO IMMEDIATELY RESPONDS
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Issues memo on June 25, 2014- less than one week!
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PTO issues “preliminary examining instructions” in view of ALICE
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MAYO test is now the rule
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ALICE extends MAYO test to all types of cases
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ALICE applies to process and product claims
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EXAMINERS are ALWAYS to DO THE TWO-STEP
• 1) is the claim directed to a judicial exception (abstract idea, law of
nature, natural phenomenon)?
• 2) if so, apply step 2 “transformation” test.
AT THE CAFC AFTER ALICE:
ABSTRACT IDEA NOT DEFINED BY THE
SUPREMES - BUT IS DEFINED BY EXAMPLE
FROM CASE LAW
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Fundamental economic practices
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Methods of organizing human
activities
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An Idea in Itself
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Algorithms, formulas
CAFC- AFTER ALICE• Digitech Image Technologies v. Electronics for Imaging, Inc. (July 11
2014)
• Patent directed to methods for balancing colors in system where devices
have different color characteristics (cameras, printers, etc.)
• “device profile” is created for source and output that is device dependent
• Here, method claims are found to be a Sec. 101 process, however,
• Process is a method of organizing information – “abstract idea”
• Claims are so broad and sweeping as to cover any and all uses of a device
profile (pre emption problem)
• CAFC finds the Mayo test is unnecessary here, claims are patent ineligible
as directed to an idea for manipulating information. Not tied to any tangible
thing.
CAFC- 101/ALICE REACHES “METHODS
FOR ORGANIZING HUMAN ACTIVITY”
• Planet Bingo v. VKGS LLC (Aug. 26 2014)
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Patent on computer bingo playing method
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But the claims as a whole are not enough to “transform” the ineligible
claimed idea
CAFC Uses Two step Mayo Analysis
Method for allowing player to use favorite numbers in multiple sessions
CAFC- could be done with pen and paper
First, Court finds method an “abstract idea”
Claims add generic computer components- CPU, memory, printer, I/O
terminal
CAFC/101- ALICE- A NEW FRAMEWORK
FOR PATENT ELIGIBILITY
• Ultramercial v. Hulu
• Method for allowing internet user to view media content in exchange for
watching paid advertisement.
• IDEA: User agrees to watch ad and then gets Glee or Breaking Bad
• In some methods, advertiser pays for each view that actually happens
• 1st Mayo factor: CAFC finds the 11 ordered steps in the claim recite an abstract
idea- “an idea having no particular concrete or tangible form”.
• 2nd Mayo factor- whether the claims “transform” the abstract idea into patent
eligible subject matter- requires “additional features” that represent more than a
“drafting effort”
• Additional elements must be more than “conventional activity”.
• “Internet” is conventional.
PTO ACTIONS AFTER ALICE
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Memorandum AUGUST 4, 2014
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“Given our duty to issue patents in compliance with existing case
law…we withdrew “Notices of Allowance” in applications due to
the existence of at least one claim having an abstract idea and no
more than generic claiming…for further prosecution.”
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PTO refuses to reveal how many applications affected.
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Game changing fast
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PTO is acting as a player, not a bureaucracy
NEW PTO GUIDELINES ISSUE DEC 2014
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Details proper examiner analysis
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B) If one of the four 101 categories, do the MAYO two step:
Applies to all types of claims
A) Is it one of the four categories- process, manufacture,
machine, composition? If not, reject claim as not eligible for a
patent
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Is it directed to one of judicial exceptions- abstract idea, law of nature,
natural phenomenon? IF SO->
Does the claim have elements that “transform” the abstract idea into a
patent eligible subject matter?
PTO AFTER ALICE
TROLLS QUICKLY FEEL THE HEAT FROM
ALICE
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“INSIGHT-Big Tech winning battle with 'patent trolls‘ (Reuters Oct
22 2014)”
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Intellectual Ventures laying off staff
Brokers cite lack of market for some patents
Stock prices of troll companies down
WHAT DID WE LOSE ? IS THERE ANY
HOPE FOR SOFTWARE PATENTS AFTER ALICE?
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Umm…YES!
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“ Unlike Ultramercial, DDRs claims include additional features that are
“more than a drafting effort designed to monopolize an abstract idea”
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“claimed solution amounts to an inventive concept for resolving a
particular Internet-centric problem”
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Patent still anticipated by prior art under 102
CAFC finds a ‘Patent Eligible’ case: DDR Holdings v. Hotels.com
ecommerce technology
Combines visual elements of a host website with third party merchants
website
DDR PATENT TEACHES HOW TO CODE
THE SOFTWARE, EXPLAINS TECHNICAL
RESULTS
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◾The code the host embeds on their web site is as follows:
•
< IMG BORDER=‘0’
SRC=‘http://www.nexchange.net/img.asp?LinkID=xxxx’>
< !—BEGIN NEXCHANGE LINK—>
< !—For more information go to http://www.nexchange.com—>
< !—The following 2 lines MUST NOT BE CHANGED to ensure proper
crediting—>
• < a href=‘http://www.nexchange.net/route.asp?LinkID=xxxx’>
• < !—Substitute your own text or image below—>
• **YOUR TEXT OR IMAGE HERE**</a>
• < !—END NEXCHANGE LINK—>
JANUARY 27 2015 -PTO OFFERS SUGGESTED
ALLOWABLE CLAIMS AFTER ALICE HTTP://WWW.USPTO.GOV/PATENTS/LAW/EXAM/
ABSTRACT_IDEA_EXAMPLES.PDF
PTO FOLLOWS DDR HOLDINGS IN THE
APPROVED EXAMPLE
ONE MORE THING:
THE SUPREMES ARE NOT DONE YET!
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Nautilus v. Biosig Instruments (Sup. Ct. June 2, 2014)
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Old Standard: Claims “amenable to construction”, and not
“insolubly ambiguous” are definite.
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SUPREMES- Not good enough! Must inform “with reasonable
certainty” those skilled in the art the “scope of the invention”.
•
BUSINESS METHOD PATENTS may NOT meet this new standard.
Issue: Standard for “definiteness” of claims?
35 USC 112 requires “claims particularly pointing out and
distinctly claiming the subject matter the applicant regards as
the invention”
KEY CONCEPTS
• Changes in US case law such as ALICE affects existing patents
retroactively
• Many existing patents were created under a vastly different
standard, i.e. State Street Bank, and many specifications are vague
and provide little details
• Claims that recite the use of a “Generic computer” with business
methods no longer valid
• Claims that fail to give “reasonably certain” public notice may be
invalid under Nautilus
• Sec. 101 under Alice is now a defense to infringement
• Sec. 101 invalidity can be used at the pleadings stage as a defense
WHAT CAN INVENTORS DO?
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DISCLOSE DETAILS TO YOUR ATTORNEY DO NOT HIDE THE BALL
Point out technical problems solved by the invention
Tie invention to particular hardware used
Make sure claims have real processing hooks, not just “processor”,
“memory”, “internet”, “CPU”, “computer”, “server”
• If method is directed to business problem, come up with other
applications away from finance and commerce
• If you wrote software to solve a problem, put code examples in the
specification!
• Don’t hide the source code! It’s the key to surviving ALICE.
WHAT CAN ATTORNEYS DO?
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Review pending applications that are internet or business methods
carefully
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Add narrow claims, with available details, file additional cases with new
claims
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Counsel clients-
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Any patent is better than no patent
Narrow claims that are infringed are A-1! Don’t get hung up on “broad” claims
Broad method claims now probably invalid. Consider narrowing reissue?
Need many types of claims – pay extra fees
Need several avenues of retreat
Need DETAILS in claims and specification
Is the key concept a BUSINESS METHOD, even practiced on the internet? NEED
DETAILS OF SOFTWARE PROGRAMS in the spec and claims!
THANK YOU!
•
Mark Courtney
•
The Courtney Firm
•
6060 North Central Expressway, Suite 560
•
Dallas Texas 75206
•
214-886-1067
Email: mark.courtney@thecourtneyfirm.com
Website: www.thecourtneyfirm.com
• “Taking on Patent Trolls to Protect American Innovation”
• www.whitehouse.gov/blog.2013/06/04
• ALICE Corp. v. CLS BANK 134 S. Ct. 2347 (Sup. Ct. 2014)
• http://www.supremecourt.gov/opinions/13pdf/13-298_7lh8.pdf
• Bilski v. Kappos (Sup. Ct. 2010)
• www.supremecourt.gov/opinions/09pdf/08-964.pdf
• Mayo v. Prometheus (Sup. Ct. 2012)
• http://www.supremecourt.gov/opinions/11pdf/10-1150.pdf
• Justices Deny Patent to Business Methods New York Times June 19, 2014
• http://www.nytimes.com/2014/06/20/technology/supreme-court-rules-against-alice-corp-in-patentcase.html?_r=0
• Bad Day for Bad Patents: Supreme Court Unanimously Strikes Down Abstract Software Patent
• https://www.eff.org/deeplinks/2014/06/bad-day-bad-patents-supreme-court-unanimously-strikes-downabstract-software
• Patent Trolls cost economy $29 Billion yearly
• http://arstechnica.com/tech-policy/2012/07/new-study-same-authors-patent-trolls-cost-economy-29billion-yearly
• USPTO - www.uspto.gov
• Post AIA implementation
• http://www.uspto.gov/blog/director/entry/update_on_uspto_s_impl
ementation
• ALICE guidelines June 25 2014
• http://www.uspto.gov/patents/announce/alice_pec_25jun2014.pdf
• Proposed ALICE rules (Dec. 16, 2014) and example claims
• http://www.uspto.gov/patents/law/exam/interim_guidance_subject_
matter_eligibility.jsp