Thanks for posting this article. Everyone here should read this. Most of the other recent articles I've read about the current state of our patent system seem to draw similar conclusions.
What is Alice 101?
Alice Corporation owned four patents on electronic methods and computer programs for financial-trading systems. Alice alleged that CLS Bank International began to use similar technology in 2002. Alice accused CLS Bank of infringement of Alice's patents. The issue in the case was whether certain claims about a computer-implemented, electronic escrow service for facilitating financial transactions covered abstract ideas ineligible for patent protection.
In 2014 Alice Corporation's patents were held to be invalid by the Supreme Court of the US (SCOTUS) because the claims were about abstract ideas, and implementing those claims on a computer was not enough to transform that idea into patentable subject matter. It declared each of Alice's patents invalid because the claims concerned abstract ideas. Abstract ideas are not eligible for patent protection under 35 U.S.C. § 101.[9]
https://en.wikipedia.org/wiki/Alice_Corp._v._...ernational
By instituting "Alice 101" SCOTUS unknowingly created a huge pandora's box in the patent system. For all future cases, they left up to the lower courts to determine whether a given patent infringement case was based on "abstract ideas" or not. But SCOTUS didn't realize that the lower courts weren't willing to define "abstract ideas" either (and would just kick the can down the road). Hence the current "mess" in the patent enforcement system was created.
My conclusions from these articles:
1) The above quotes show you just what an overall mess this is. The problem is not just our (SFOR's) problem, but there is a much larger system-wide problem with "Alice 101" and patent enforcement. No matter how strong the patent enforcement case is, all the other side has to do is cite "Alice 101" to get off the hook, with the courts not even addressing or understanding the merits of the case (which is what happened to us).
2) By not addressing or being willing to define what is inventiveness or "abstract idea" (see above) both SCOTUS and the Federal Circuit courts are just kicking the can down the road, which makes actual patent infringement resolution nearly impossible in most situations, -a frustrating scenario for almost every company that brings clear cases of patent infringement to the court system.
Why did all this happen?
At some point the Supreme Court (SCOTUS) seemed to be unhappy with the USPTO's (United States Patent and Trademark Office) policies and guidance, so they took on "Alice 101". Alice 101 became a precedent in patent infringement cases, and rather than being a fix, it opened up a huge can of worms, which has become an enormous problem for patent enforcement.
What can be done (in SFOR's case) and in the big picture?
Most articles that I have read say that this larger problem needs to be addressed and fixed (either by SCOTUS or by Congress), hopefully sooner rather than later, -in order to straighten out the mess in the patent system that SCOTUS and "Alice 101" created.
SFOR is caught up in the middle of this much larger patent enforcement system problem. At least we didn't lose our patent eligibility (like many patent infringement litigants).
All we can do is hang in there (with our appeals) until the problem is resolved. This is all the more reason why SFOR should continue its pursuit of an appeal, until this larger problem is resolved (because it's not just our problem, it's everyone's problem). It's possible that delays in our appeal process could actually benefit SFOR, (if SCOTUS or Congress were to step up and resolve this problem in the interim).
Originally I posted that the best option for an SFOR appeal probably was to have our case reviewed by the entire panel of 12 Federal Circuit Court judges. But I have since changed my mind (after reading and studying the above), and have concluded that an appeal to the Federal Circuit court is probably not our best option. Instead I think that SFOR should take its case directly to the Supreme Court (SCOTUS).
Why?
Because SCOTUS is the only court large enough to resolve this systemic problem, and because I doubt that the 12 Federal Circuit Court judges would do anything new (either in resolving SFOR's case or in resolving this larger issue). I think the Federal Circuit Court would just continue to kick the can down the road and wait for someone else (SCOTUS or Congress) to solve the problem.
In other words, if we were to take our case to the Federal Circuit Court again, I think we would lose again for the third time.
But there may be hope. Since there is a bigger awareness of this overall problem, there is the possibility that it may somehow get resolved soon.
All IMO.
RR007
Other relevant articles:
https://www.ipwatchdog.com/2019/01/11/new-cou...id=104975/
What is Alice 101?
Alice Corporation owned four patents on electronic methods and computer programs for financial-trading systems. Alice alleged that CLS Bank International began to use similar technology in 2002. Alice accused CLS Bank of infringement of Alice's patents. The issue in the case was whether certain claims about a computer-implemented, electronic escrow service for facilitating financial transactions covered abstract ideas ineligible for patent protection.
In 2014 Alice Corporation's patents were held to be invalid by the Supreme Court of the US (SCOTUS) because the claims were about abstract ideas, and implementing those claims on a computer was not enough to transform that idea into patentable subject matter. It declared each of Alice's patents invalid because the claims concerned abstract ideas. Abstract ideas are not eligible for patent protection under 35 U.S.C. § 101.[9]
https://en.wikipedia.org/wiki/Alice_Corp._v._...ernational
By instituting "Alice 101" SCOTUS unknowingly created a huge pandora's box in the patent system. For all future cases, they left up to the lower courts to determine whether a given patent infringement case was based on "abstract ideas" or not. But SCOTUS didn't realize that the lower courts weren't willing to define "abstract ideas" either (and would just kick the can down the road). Hence the current "mess" in the patent enforcement system was created.
Quote:Because the Supreme Court seems to have very intentionally said we’re not going to define “abstract idea.” What the Supreme Court has said is, “oh, well, the inferior courts or lower courts or people who aren’t us, will figure it out.” And now we’ve got the Federal Circuit saying, “well, if they don’t have to define it, then we don’t have to define it, we just do a matching game. A matching game is doomed to failure.
https://www.ipwatchdog.com/2019/01/30/ibm-cal...id=105754/
Quote:Re: The "Alice 101" nightmare:
Simply by filing a patent infringement complaint, over half the time, the patentee not only lost the litigation, but also lost its patent right, and 75% of those losses were not appealed.
Of that lucky 25% that had the resources to request Federal Circuit review, fewer than one-half of them, or 57 of the 122 appeals of district court invalidations, received opinions from the Federal Circuit. The rest received the dreaded “Rule 36 Affirmance,” which provides no guidance to the litigants or to others trying to navigate these dangerous waters.
Even today, the Federal Circuit’s post-Alice decisions tell us that no patent is safe from Section 101. And, if you can believe it, no Federal Circuit decision has defined what “abstract” means, even though courts have invalidated several hundred patents as being “abstract.”
https://www.ipwatchdog.com/2018/09/18/alice-a...id=101447/
My conclusions from these articles:
1) The above quotes show you just what an overall mess this is. The problem is not just our (SFOR's) problem, but there is a much larger system-wide problem with "Alice 101" and patent enforcement. No matter how strong the patent enforcement case is, all the other side has to do is cite "Alice 101" to get off the hook, with the courts not even addressing or understanding the merits of the case (which is what happened to us).
2) By not addressing or being willing to define what is inventiveness or "abstract idea" (see above) both SCOTUS and the Federal Circuit courts are just kicking the can down the road, which makes actual patent infringement resolution nearly impossible in most situations, -a frustrating scenario for almost every company that brings clear cases of patent infringement to the court system.
Why did all this happen?
At some point the Supreme Court (SCOTUS) seemed to be unhappy with the USPTO's (United States Patent and Trademark Office) policies and guidance, so they took on "Alice 101". Alice 101 became a precedent in patent infringement cases, and rather than being a fix, it opened up a huge can of worms, which has become an enormous problem for patent enforcement.
What can be done (in SFOR's case) and in the big picture?
Most articles that I have read say that this larger problem needs to be addressed and fixed (either by SCOTUS or by Congress), hopefully sooner rather than later, -in order to straighten out the mess in the patent system that SCOTUS and "Alice 101" created.
SFOR is caught up in the middle of this much larger patent enforcement system problem. At least we didn't lose our patent eligibility (like many patent infringement litigants).
All we can do is hang in there (with our appeals) until the problem is resolved. This is all the more reason why SFOR should continue its pursuit of an appeal, until this larger problem is resolved (because it's not just our problem, it's everyone's problem). It's possible that delays in our appeal process could actually benefit SFOR, (if SCOTUS or Congress were to step up and resolve this problem in the interim).
Originally I posted that the best option for an SFOR appeal probably was to have our case reviewed by the entire panel of 12 Federal Circuit Court judges. But I have since changed my mind (after reading and studying the above), and have concluded that an appeal to the Federal Circuit court is probably not our best option. Instead I think that SFOR should take its case directly to the Supreme Court (SCOTUS).
Why?
Because SCOTUS is the only court large enough to resolve this systemic problem, and because I doubt that the 12 Federal Circuit Court judges would do anything new (either in resolving SFOR's case or in resolving this larger issue). I think the Federal Circuit Court would just continue to kick the can down the road and wait for someone else (SCOTUS or Congress) to solve the problem.
In other words, if we were to take our case to the Federal Circuit Court again, I think we would lose again for the third time.
But there may be hope. Since there is a bigger awareness of this overall problem, there is the possibility that it may somehow get resolved soon.
All IMO.
RR007
Other relevant articles:
https://www.ipwatchdog.com/2019/01/11/new-cou...id=104975/
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