Stupid Patent Of The Month: Motivational Health Messaging LLC Gets A Patent On Sending Uplifting Texts

from the cheer-up...-and-get-sued dept

Have you ever sent a motivational text to a friend? If you have, perhaps you tailored your message to an activity or location by saying "Good luck in the race!" or "Have fun in New York!" Now, imagine doing this automatically with a compuuuter. What a great invention. Actually, no. That's not a good invention, it's our latest Stupid Patent of the Month.

U.S. Patent No. 9,069,648 is titled "Systems and methods for delivering activity based suggestive (ABS) messages." The patent describes sending "motivational messages," based "on the current or anticipated activity of the user," to a "personal electronic device." The patent provides examples such as sending the message "don't give up" when the user is running up a hill. The examples aren't limited to health or exercise. For example, the patent suggests sending messages like "do not fear" and "God is with you" when a "user enters a dangerous neighborhood."

The patent's description of its invention is filled with silly, non-standard acronyms like ABS for "activity based suggestive" messages or EBIF for "electronic based intelligence function." These silly acronyms create an illusion of complexity where plain, descriptive language would reveal the mundane nature of the supposed invention. For example, what the patent grandly calls EBIF appears to be nothing more than standard computer processing.

The '648 patent is owned by Motivational Health Messaging LLC. While this may be a new company, at least one of  the people behind it has been involved in massive patent trolling campaigns before. And the two named inventors have both been inventors on patents that trolls have asserted hundreds of times. One is also an inventor listed on patents asserted by infamous patent troll Shipping and Transit LLC. The other named inventor is the inventor on the patents asserted by Electronic Communication Technologies LLC. Those two entities (with their predecessors) brought over 700 lawsuits, many against very small businesses. In other words, the '648 patent has been issued to Troll Co. at 1 Troll Street, Troll Town, Trollida USA.

We believe that the claims of the '648 patent are clearly invalid under the Supreme Court's decision in Alice v. CLS Bank, which held abstract ideas do not become eligible for a patent merely because they are implemented in conventional computer technology. Indeed, the patent repeatedly emphasizes that the claimed methods are not tied to any particular hardware or software. For example, it states:

The software and software logic described in this document … which comprises an ordered listing of executable instructions for implementing logical functions, can be embodied in any non-transitory computer-readable medium for use by or in connection with an instruction execution system, apparatus, or device, such as a computer-based system, processor-containing system, or other system that can fetch the instructions from the instruction execution system, apparatus, or device and execute the instructions.

The '648 patent issued on June 30, 2015, a full year after the Supreme Court's Alice ruling. Despite this, the patent examiner never even discussed the decision. If Alice is to mean anything at all, it has to be applied to an application like this one.

In our view, if Motivational Health Messaging asserts its patent in court, any defendant that fought back should prevail under Alice. Indeed, we would hope that the court would strongly consider awarding attorney's fees to the defendant in such a case. Shipping & Transit has now had two fee awards made against it for asserting patents that are clearly invalid under Alice. And the Federal Circuit recently held that fee awards can be appropriate when patent owners make objectively unreasonable argument concerning Alice.

In addition to the problems under Alice, we believe the claims of the '648 patent should have been rejected as obvious. When the application was filed in 2012, there was nothing new about sending motivational messages or automatically tailoring messages to things like location. In one proposed embodiment, the patent suggests that a "user walking to a hole may be delivered ABS messages, including reminders or instructions on how to play a particular hole." But golf apps were already doing this. The Patent Office didn't consider any real-world mobile phone applications when reviewing the application.

If you want to look for prior art yourself, Unified Patents is running a crowdsourcing contest to find the best prior art to invalidate the '648 patent. Aside from the warm feelings that come from fighting patent trolls, there is a $2000 prize pool.

Despite the weakness of its patent, Motivational Health Messaging LLC might still send out demand letters. If you receive such a letter, you can contact EFF and we can help you find counsel.

We have long complained that the Patent Office promotes patent trolling by granting obvious and/or abstract software patents. The history of the '648 patent shows how the Patent Office's failure to properly review applications leads to bad patents falling into the hands of trolls.

Republished from EFF's Stupid Patent of the Month series.


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  • identicon
    I.T. Guy, 28 Dec 2017 @ 12:32pm

    Tis the season to be Troll-e, fa la la la la, la la la la.

    In one proposed embodiment,(which I didn't read.) the patent suggests that a "user walking to a hole may be delivered ABS messages,... (Thinking, Wow! Thats amazing. They know where the holes in the ground are.) including reminders or instructions on how to play a particular hole." Oh... Golf. Nothing to see here.

    Tap tap tap. Iz dis ting on? Where is everybody? Hello... ello... ello... ello. Am I the only one at work today? :(

    reply to this | link to this | view in chronology ]

    • icon
      Roger Strong (profile), 28 Dec 2017 @ 1:18pm

      Re:

      That's not trolling; THIS is trolling:


      Location data: 1600 Pennsylvania Avenue NW, Washington, D.C.

      Message: "Enjoy your ride on the unhinged ferris wheel rolling toward the sea!"


      Location data: Harvey Weinstein's office

      Message: "Oh, don’t act so surprised. You knew this would come out eventually."

      Message: "It was inevitable that he'd greenlight The Nut Job 2: Nutty By Nature."

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 28 Dec 2017 @ 12:52pm

    "do not fear" and "God is with you"

    needed when a cop is in the area.

    reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 28 Dec 2017 @ 1:56pm

    dont THINK real hard on this..

    YOUR BRAIN WILL BE NEXT..

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 28 Dec 2017 @ 6:21pm

      Re: dont THINK real hard on this..

      YOUR BRAIN WILL BE NEXT..

      And THEN you'll start GOING around SHOUTING in all CAPS for no DISCERNIBLE reason at ALL.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2017 @ 4:28am

    about time there was a serious overhaul of the Patent Office staff, methinks!

    reply to this | link to this | view in chronology ]

    • identicon
      Annonymouse, 29 Dec 2017 @ 8:17am

      Response to: Anonymous Coward on Dec 29th, 2017 @ 4:28am

      Do you mean hauling the whole thing to west texas where they will go into a short orbit and annihilate themselves in a shower of chads?

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2017 @ 10:02am

    The owner of this patent could cash in big with all the suck up motivational stroking that trump is getting.

    reply to this | link to this | view in chronology ]

  • icon
    Jeffrey Nonken (profile), 29 Dec 2017 @ 10:12am

    http://tvtropes.org/pmwiki/pmwiki.php/Main/RecycledINSPACE

    Somehow this trope seems particularly relevant.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 29 Dec 2017 @ 11:35am

    What a particularly unhelpful article. That author seems to think that merely saying “Alice” a number of times without a scintilla of substantive analysis convincingly proves his point. He would be better served trying to explain why it is an abstract idea as that term has been used by the SCOTUS than by resort to useless mocking of a patent that he personally finds to be unworthy under his personal standard for patentability.

    reply to this | link to this | view in chronology ]

    • identicon
      JEDIDIAH, 29 Dec 2017 @ 3:45pm

      Don't annoy me or I will replace you with a shell script.

      Half of the computing profession has created stuff like this for their own use for the last 30 years or so.

      I could seed "fortune" with a custom set of appropriate messages or I could just re-implement it from scratch with a few more lines of shell.

      I could "spice up" some of my own 20 year old system monitoring scripts with "inspirational" messages in about 10 minutes.

      "Root is 95% full. With God all things are possible."

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Dec 2017 @ 5:46pm

      Re:

      Only dumb people think dumb patents are good because they aren't sophisticated enough to know an obvious idea when they see one.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Dec 2017 @ 6:59pm

      Re:

      Hi, Slonecker. How's your first taste of oxygen after months under antidirt's desk?

      reply to this | link to this | view in chronology ]

  • icon
    frank87 (profile), 30 Dec 2017 @ 8:12am

    My first impulse was to name "cron":
    0 0 1 1 * echo "Happy new year" 2> /dev/null | mailx -s "New year" readerslist@techdirt.com

    reply to this | link to this | view in chronology ]


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