For more than two decades now, developers and users of software have been plagued by a flood of bad patents. Software patents that describe everyday practices like watching an ad online, publishing nutrition information, meeting people nearby, or teaching a language class continue to be issued, and low-quality patents get used in hundreds of lawsuits every year. 

Government officials should be working to reduce, not increase, the burden that low-quality patent lawsuits impose on innovators. So we’re concerned and dismayed by recent briefs filed by the U.S. Solicitor General, asking the Supreme Court to reexamine and throw out the best legal defenses regular people have against “patent trolls”—companies that don’t make products or provide services, but simply use patents to sue and threaten others.

A Sensible Framework Worth Keeping 

To truly stop patent trolls, we’ll need wholesale reform, including legislative change. But the current framework of rules governing Section 101 of the U.S. patent laws, including the Supreme Court’s 2014 CLS Bank v. Alice decision, were important victories for common-sense patent reform.

The Alice decision made clear that you can’t simply add generic computer language to basic ideas and get a patent. The ruling has been consistently applied to get the worst-of-the-worst software patents kicked out of the system. For the most part, it allows courts to state, clearly and correctly, that these patents are a form of abstract idea, and should be thrown out at an early stage of litigation. A win under the Alice rules spares the targets of patent trolls not just from an unjust trial, but from an invasive and expensive discovery process, fueled by a patent that never should have been issued in the first place. 

The Alice ruling, combined with another Supreme Court decision called Mayo Collaborative Services v. Prometheus Labs, has been a big step forward. EFF’s “Saved by Alice” project highlights how small businesses have protected themselves from trolls, when patent law was on their side. 

“Not A New Idea”

The U.S. Solicitor General represents the views of the federal government to the Supreme Court. The office typically argues dozens of cases each year before the Supreme Court, making it one of the most influential offices in American law. The current Solicitor General, Elizabeth Prelogar, was nominated by President Joseph Biden, and confirmed by the Senate in 2021. 

The Supreme Court sometimes asks the Solicitor General to weigh in on which cases it should and should not take up. Since the Supreme Court takes fewer than 100 cases per year, out of the several thousand petitions it receives, those opinions are important. 

Last month, we were dismayed to see the Solicitor General’s office take a position so clearly contrary to the public interest in a patent case. 

Interactive Wearables LLC v. Polar Electro involves a ridiculous patent that was properly thrown out by a district court, with that decision being upheld on appeal. U.S. Patent No. 9,668,016, claims an “apparatus and method for providing information in conjunction with media content.” Its named inventor is Alexander Poltorak, the longtime CEO of General Patent Corporation, “an intellectual property firm focusing on intellectual property strategy and valuation, IP licensing and enforcement.”

Interactive Wearables sued Polar, a maker of GPS-enabled smartwatches, in 2019. Polar filed a motion to dismiss, explaining how the patent troll’s incredibly broad claims should clearly be thrown out under Alice: 

The idea is simple. The patents explain someone might be watching a TV show, find the show enjoyable, and desire to know more about the show – e.g., the name of the show. The patents are directed to the idea of providing that information while the person is watching the show. This is not a new idea; it is something TV Guide has done for decades. The only advancement the patents teach is using generic computer components to implement the abstract idea.

Interactive Wearables tried to save their patent on several grounds, including the idea that it’s “wearable.” The patent troll’s complaint argued that “the first watch that wirelessly paired with a cellphone… was not released until 2006.” 

The judge overseeing this case did not allow the patent to be saved simply because its owner pointed out, correctly, that it’s essentially a piece of science fiction. He found that the patent’s descriptions “are not specific enough to address any specific improvement or solution,” and that there was simply no “inventive concept,” and found it invalid.

This open-and-shut dismissal was upheld by an appeals court in a one-sentence order. 

The Solicitor General Sides With A Patent Troll 

Every judge that reviewed this case saw clearly there was no invention here. The named inventor on this patent, Alexander Poltorak, didn’t invent anything at all. That isn’t surprising, since there’s scant evidence Poltorak actually made smart watches or any other technology. Rather, he has a built a decades-long career as a patent licensing professional, who specializes in accusing others of patent infringement. He has owned General Patent Corporation, and other patent troll entities, as well. 

So it’s disappointing to see the Solicitor General file a brief that suggests the district court judge and three appeals court judges who saw through this “invention” should be overturned. The Solicitor General accepts the view that Poltorak’s contributions are meaningful, should be reviewed by the Supreme Court, and that whoever owns Interactive Wearables LLC should be given another chance to sue companies that make real technology. 

This view stands starkly against the public interest. To be clear, the Solicitor General is attempting to rescue this troll’s patent. The Solicitor General echoes Interactive Wearables’ outsized views of its own importance, stating that: 

earlier content players did not have a way for users to view information about the content, like the title of a song or the name of a show, while content was playing… The remote control for Interactive’s player purports to address that shortcoming by incorporating a screen that can display information about the content being played. 

The SG argues that the Supreme Court’s Alice and Mayo decision merely limit patents to “the scientific, technological, and industrial arts.” The brief argues that “patent-ineligible abstract ideas” do not include “quintessentially technological inventions, like the improved content player that the patentee claimed in Interactive.”

The judge who threw out the Interactive Wearables patents “placed undue emphasis on considerations of novelty, obviousness, and enablement,” issues that should be considered in other areas of patent law, not Section 101, the brief continues.

This argument mirrors the kinds of proposed legislation we’ve seen recently, proposed by extremists who want everything to be patentable. The Solicitor General is arguing that simply because the Interactive Wearables patent talks about technology, it should pass through Section 101. 

Alice And Section 101 Protect The Public Interest

There’s a simple reason that patent owners, including patent trolls, want Section 101 to be useless: they’ll make more a lot more money. When judges effectively use Section 101, it leads to early dismissals on the worst patents—that’s why patent trolls, and other owners of massive patent hoards, absolutely want to avoid it. 

Just by getting the decision postponed to be resolved in another section of patent law—exactly what the Solicitor General suggests here—is a big win for trolls. Then their targets will have to go through more expensive litigation, including discovery and claim construction. A patent troll’s settlement demand, whether it’s $50,000 or $500,000, will begin to look like the “cheap” way out of a case, compared to the cost of a jury trial that can run into the millions of dollars. 

Moreover, there’s simply no lack of clarity to be resolved here. As EFF testified directly to Congress in 2019, the law of Section 101 is clearer than it’s ever been under the Alice-Mayo framework. The rules on abstract patents are beneficial to the public, and not to those who abuse the patent system. That’s why so many are trying to overturn it. 

The Supreme Court should not cooperate. It should reject this petition. 

Furthermore, the Solicitor General should file briefs in patent cases that actually side with the people making and using technology—not with patent trolls. We hope the Interactive Wearables LLC brief, in which top lawyers of the Biden Administration worked overtime to give new life to an abusive patent lawsuit, is a one-time footnote in the history of innovation. 

Update May 15, 2023: The Supreme Court declined to hear this case.  

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