Bonum Certa Men Certa

Patents Roundup: RPX Grows, Netflix Issues a Patent Challenge, More on In Re Bilski

Netflix logo



Summary: Potpourri of software patent news from the past week and a half (focused on the United States)

HAVING taken a break for a while, a lot of patent news piled up. Here are the important bits of information from the United States:

Association of Press Release Distributors, LLC ("Association of Press Release Distributors, LLC fight against #swpat on publishing press releases on websites," emphasises Rui Seabra)

There are hundreds of press release distribution companies. Most exist with little to no interaction with each other in their industry. That ends today.


RPX Client Network Grows 150% in Six Months (see our Wiki page about RPX)

The new clients include global electronics companies NEC Corporation and Hitachi, Ltd.; infrastructure software provider Novell, Inc.; semiconductor manufacturer Nanya Technology Corporation; software developer Lawson Software, Inc.; wireless voice and data solutions provider Leap Wireless International Inc.; speech-recognition leader Nuance Communications, Inc.; and the world’s largest bookseller, Barnes & Noble, Inc.


Netflix Tries to Fix One Part of the Patent System

There's a very interesting case, Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys' fees. Here's their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed.

[...]

Netflix, in short, is asking the court to think about defendants who are attacked with very weak patents, and who then are more or less pragmatically forced to settle rather than fight, just because it's cheaper. If they can't get their attorneys' fees paid, what in the world makes them whole? Netflix says Media Queue is "a non-practicing entity," which is the polite way to call such entities. Setting an "objectively reckless" standard is a lower bar than proving frivolity or bad faith, and Netflix seems to be of the opinion that patent holders with weak patents are over-incentivized to bring questionable and very costly litigation, knowing they are unlikely to have to pay their victim's attorneys' fees, which can typically be in the millions.


NTP Keeps On Making The Case For Patent Reform As It Sues More Companies

Company suing eBay for $3.8B: eBay “unfairly stole the idea” of e-Payment systems

Another day, another major lawsuit. This time, a company called XPRT Ventures LLC has sued eBay for allegedly stealing “the idea and method of payment used in eBay’s PayPal and similar electronic payment systems” according to the press release put out by the XPRT’s lawyers Kelley Drye & Warren LLP.


Write Brothers, Inc. Celebrates a Decade at Comic-Con International 2010

Write Brothers currently holds three software patents. It holds two for the Dramatica€® story assistant, and one for the timeline-based presentation of text used in the StoryView™ outlining software. Streamline is the fourth technology patent Write Brothers has filed.


Microsoft will offer test versions of Dynamics CRM in September

Microsoft biggest competitor in this arena is Salesforce.com, which sells a Web-based software service for customer relationship management. The two companies are currently suing each other over software patents.


There is still a lot of new coverage about the Bilski case:

The silver lining in the Bilski decision isn't where most people believe ("Florian Müller" warning -- he is sometimes misguided in his targeting of issues)

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in re Bilski, a business method patent case. The patent application was rejected, but in a way that didn't draw any kind of line that would affect patents on software technology.

[...]

Let's better face this fact: there isn't a single killer argument against software patents that will convince a non-programmer if that same counterpart has also heard the pro-patent argument. If you can ever convince a majority of decision-makers, you'll have to do it indirectly. The direct approach has been tried by many people for many years -- to no avail (except, as I mentioned before, in a defensive situation).


Patent Litigation Weekly: Eben Moglen on Bilski, Software Patents, and Big Pharma

Moglen's position on the subject of software patents—that they should be banned—is, to say the least, outside the mainstream in legal circles. It has, however, garnered support among software developers and other techies, especially those who work in the world of open-source and free software.

Moglen's critique of the patent system extends well beyond the software issues he writes about, however. He suggests, for instance, that the 20-year monopoly granted by a patent is the product of a bygone era. And though he rejects the notion that he is "anti-patent," he says that the patent monopoly grant should be subject to a rigorous cost-benefit analysis, not simply handed out at the "monopoly window" that he believes the current Patent and Trademark Office represents.


Sanity From the 1st Post-Bilski Decision from BPAI: In Re Proudler

Look at this, will you? The first decision from the Board of Patents Appeals and Interferences post-Bilski to reference that US Supreme Court decision, in In Re Proudler [PDF], a ruling rejecting HP's application for a software patent, setting forth a rule stating, as I read it, as saying software is not patentable because it's an abstraction:
Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, "Abstract software code is an idea without physical embodiment." Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010).
This is not the last word, I'm sure, as HP can certainly try to reword. But don't you find this encouraging? I do. And that's why I wanted it in our permanent record of the Bilski case and its aftermath.


First Post-Bilski Patent Appeals Ruling Rejects Software Patent (Bilski precedence is already killing patents)

Well, well, well. Following the rather ridiculously vague Bilski ruling, that doesn't actually say what the right test should be for whether or not business methods or software should be patentable, many people have been wondering what it really means. While some of the justices have hinted at the idea that most software really isn't patentable, that's not at all clear from the ruling. Instead, the ruling suggests that the courts come up with a new test, and then the Supreme Court will tell them whether or not that new test is okay. Many software patent system supporters have interpreted this to mean that software patents are perfectly okay. But perhaps they shouldn't go that far just yet.


Post-Bilski Decision

One of the first decisions post-Bilski has shot down an appeal of a rejected patent application by HP. The patent-examiner had rejected the patent on the grounds of prior art (It’s mostly AND applied to rules for passing data…) but the appeal-board rejected the claims on the grounds of non-patentability


From the Editors: The Supreme Court’s road not taken

Bilski patent ruling will increase costs of doing business, says expert

United States: The Supreme Court Rules That The Process in Bilski is Not Patentable, But Refuses to Foreclose The Patentability of Business Methods

Bilski, Business Method Patents and the Uncertainty Principle

Bilski: One Step Forward... Two Steps Back

Inventors Given Hope on Patents for Business Methods

Software, pharmaceutical, and business method patents survive

A Close Call for Silicon Valley

Death Knell For Software Patents

United States: The Long-Awaited Bilski (In) Decision

[Ben Klemens on] Bilski and software patents

Should software be patentable?

It seems to me that the concept of certain generic sorts of software patents could well be made redundant thanks to the growth of open source, while remaining for specialist applications that have a technical purpose.


Patent Office Says No to Supreme Court and Software Patents

Startups and University Research: Too Much Emphasis on Patents?

When the Supreme Court ruled last month on the Bilksi case, denying Bilski's patent claim that Bilksi's patent but not making any real statements on the overall patentability of business methods or software, several opponents of software patents, including VCs Jason Mendelson and Brad Feld expressed their disappointment.

[...]

The study surveyed over 11,000 professors, and of the 1948 who responded who had started businesses, only 682 - about a third - had established them to exploit the patents obtained via the university intellectual-property systems. The remaining 1266 respondents had started businesses based on non-patentable knowledge.


Supreme Court On Patenting

Software patent advocates are praising the said decision of the Supreme Court like Tom Syndor saying that the Supreme Court was sensible in rejecting the said idea. A new layer and era of patent decade will help in requiring patent applicants to present plaintiffs to prove that their ideas are not abstract.


Paul Kedrosky's article "Software Patents Need to Be Abolished" has spread further (also published in other places with Brad Feld, who is a critic of software patents [1, 2, 3]).

Recent Techrights' Posts

If Your Company Lost About 30% of Its 'Value' in 3 Months, Then Maybe It Was Never Worth What You Claimed
Does that make sense?
Pleroma is Dying
The last social control media that I joined was Pleroma
Asia and Social Control Media
statCounter reckons it's down from over 10% to just 3% since it began tracking those things
Anonymous Threats Against My Wife and Against Yours Truly
Promoting GNU/Linux and condemning people who attack GNU/Linux is not a crime
Decades-Long Microsofter (Darryl K. Taft) and TIOBE Conflate Microsoft GitHub (Proprietary) With FOSS in Microsoft-Sponsored 'News' Site
We do not intend to do a lengthy debunking because we covered this subject several times in the past
Microsoft Cuts Continue, Visitor Center in Redmond Shut Down
This goes on and on, leading up to the next giant wave of mass layoffs
IBM Bubble Deflating After James Kavanaugh's Accounting Trick With 'Toxic Assets' Comes Under SEC Scrutiny
If something goes up based on false speculations, bonus numbers and self-serving lies, then it'll come back down, eventually...
The EPO's Corruption and Violation of Rules is Spreading to the United Kingdom (Software Patents)
Yesterday a letter was sent to the chief regarding salaries while reminding him of the next strike, which is only 11 days away
IBM Continues Tanking Today, Already $58+ Lower Than Recent High, Insiders Explain Why
The same CFO from the inception of Kyndryl is still the CFO at IBM
Put Criminals in Prison, Not People Who Report the Crimes
Can people be sent to prison for opposing crime?
 
Links 13/02/2026: SUSE Uses Microsoft Internally, MElon's Company Helps Turn Epstein Files Into Child Abuse (After the Pornography Scandals)
Links for the day
African Browser Choices Show a Growing Problem in the World Wide Web
World Wide Web (WWW) becoming little but a transport layer for a particular proprietary application (Google Chrome) [...] we're back to the late 1990s
If You Want Digital Freedom, Then Follow Richard Stallman, the "Linux" Brand Has Changed and OSI is Microsoft (GitHub)
If you want something stable and predictable, then stick with GNU, the GPL, and GCC
Solicitors Disciplinary Tribunal and SRA Failing to Curb SLAPPs Against People Who Expose Wrongdoing
We'll soon show messages that we transmitted to politicians
Beware the Latest IBM SPAM, IBM is Already Down "After Hours"
After a harsh day in Wall Street IBM's shares area already down again (after trading hours)
Radicalism in Our Communities is Mostly Corporate, Not Grassroots
Infiltration and systematic destruction can be shallowly painted as "inducing manners"
Life Gets Better After Social Control Media
Don't become part of these experiments
statCounter Suggests Americans Are Dumping Social Control Media
Are Americans getting fed up with social control media and quitting in droves?
Back Doors and Fake Security
They've militarised everything, even people's home computers
Cost-Cutting and Book-Cooking at IBM
It's like cutting salaries by more than 50%
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 12, 2026
IRC logs for Thursday, February 12, 2026
Mainstream Media Intentionally Ignoring EPO Strikes
“EPO on Strike!”
Jeffrey Epstein crypto disclosure: uncanny timing, Bitcoin demise, pump-and-dump, ponzi schemes
Reprinted with permission from Daniel Pocock
Gemini Links 12/02/2026: Avoiding Coffee, Trying Ubuntu, and "Open Source Robot"
Links for the day
Microsoft Slop CEO Speaks of Layoffs
They will go along with the "replaced by AI" baloney
In Systematic Contempt of the British High Court, Brett Wilson LLP Spent Two Years Lying to Courts and Breaking Rules Against Us
We criticise Brett Wilson LLP quite lot because of its conduct
IBM Kyndryl as "Aggressive “Enron” Accounting"
IBM Kyndryl continues to nosedive today
Relationships evidence: Tiago, Tassia, Thais, Antonio & Debian favoritism, nepotism
Reprinted with permission from Daniel Pocock
Debian pregnancy cluster: why it is public interest
Reprinted with permission from Daniel Pocock
State of the Slop, Slopfarms Containment
Slopfarms still exist this year, but their visibility is limited
Links 12/02/2026: Pushback Against, "NATO Is Expected to Step Up Arctic Security"
Links for the day
Links 12/02/2026: "Microsoft Just Forked Windows" and Windows Notepad is a Giant Security Hole
Links for the day
Windows Has Become Increasingly Irrelevant
There's a very massive wave of layoffs coming Microsoft's way
Our Most Successful Year Ever
The hired guns in London are eager to turn the UK into another China
Slopfarms Waning, But Not Extinct Yet
Metrics show that usage of LLMs is declining
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 11, 2026
IRC logs for Wednesday, February 11, 2026
IBM's Stock is Crashing
If it follows the trajectory of its satellite Kyndryl, it can fall and reach as low as $75
Gemini Links 11/02/2026: Sunny Morning and "KiCad Aims to Ease Linux Installation"
Links for the day
Microsoft Loses Ground in Switzerland
One issue is, Google and Apple seem to gain at Microsoft's expense
Microsoft Layoffs Must be Very Near (and Very Large)
just like IBM
Bringing Attention/Awareness of EPO Corruption and Cocaine Use to the Mainstream Media
What has Europe become? Prey to vultures?
The Solicitors Regulation Authority (SRA) Delusion - Part V - Everyone Seems to Agree That SRA is a Sham
We're going to start a new series soon
A Can of WORMS - Part V - Up Next: The Comeback of RMS in the United States
Guess who funds the cancellers
Threats From 'Former' Red Hat (Now IBM) Staff While IBM's Likely Accounting Fraud Attracts Public Scrutiny
We must be getting "warm"
Matthew J. Garrett Has Just Sent a Threat to Put My Wife and I in Prison Because His Own Spouse Says He's a Rapist
What really intimidates him is his own spouse
Gemini Links 11/02/2026: Terminator Trilogy and Lagrange in the Apple App Store
Links for the day
Links 11/02/2026: Fentanylware (CheeTok) for ICE, Jimmy Lai Shows Journalism Became 'Crime' in Hong Kong
Links for the day
With Firefox Measured at 2% in the United Kingdom Time is Running Out for Web Site Support for Gecko/Servo Users
The open Web is rapidly dying while Mozilla celebrates and champions slop
Lawsuit reactions: EFF behaviour reveals zombification, censorship
Reprinted with permission from Daniel Pocock
Links 11/02/2026: $700 Billion Slop Bill, Social Control Media Under Political Fire for Deliberate Health Harms
Links for the day
Amended Input From Software Freedom Institute for EU Consultation on Free Software
"On 3 February 2026 Software Freedom Institute lodged a submission with the European Commission's inquiry into Open Digital Ecosystems"
Mobbing at the European Patent Office (EPO) - Part VI - Attacks on Staff and Attacks on the Law Merit Another New Series
new series coming shortly
Nadella's Mindless PR Spam Ahead of the Layoffs 'Snowball' (Adding Up Batches) Turning Into an Avalanche
Based on recent observations, the more puff pieces we see about Nadella, the closer we get to Microsoft "pulling the trigger" on mass layoffs
When Happens to Red Hat If (or When) IBM Collapses
IBM is in flux because its CFO is now implicated in what seems like accounting fraud
IBM's Financial Engineering (Accounting Fraud) Shell, Kyndryl Holdings Inc, is Insolvent
If this was done by the very same people who still run IBM, can we expect any better from "Sugar Daddy" IBM?
2026 a Very Productive Year and We Have Many Big Stories to Tell
maybe we'll produce 8,000 new articles/pages by year's end
Clownflare is in Trouble as Its Debt More Than Doubled in Less Than a Year, Expect Further Enshittification
Clownflare isn't free
After the Next Wave of Microsoft Layoffs Washington State Could be #1 for US Layoffs
Microsoft Corp shares were down yesterday
EPO's Local Staff Committee The Hague (LSCTH): The EPO is Generally “Managed by Excel” (Microsoft)
The current management has basically defined corruption to be "success"
With an IBM Company Down Over 75% After Apparent Accounting Fraud the IBM Insiders Want Answers From James Krabanaugh
He has no technical qualifications
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 10, 2026
IRC logs for Tuesday, February 10, 2026