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In the Age of Software Patents Nullification, CAFC Strikes Again, Promoting Those Patents

Posted in Law, Patents at 11:28 am by Dr. Roy Schestowitz

Strike three. Time to strike against the ‘legal’ system?

London strike
London strike

Summary: Silly judgment from the source of many of today’s software patents is harming what looked like progress

In the land of software patents the lawyers seem concerned that patents on software are being invalidated and one firm (patent lawyers in the US) says “The PTAB decision [invalidating software patents] was issued nine months after the PGR petition was filed and was, therefore, relatively expedient, especially compared to the district court litigation that preceded it. Versata had sued SAP in federal district court in 2007, Versata prevailed at trial, and SAP appealed to the United States Court of Appeals for the Federal Circuit in 2011. The Federal Circuit upheld the jury’s infringement verdict—and its more than $300 million damages award—with respect to the same patent just last month. Versata Software, Inc. v. SAP America, Inc., Nos. 2012-1029, -1049, slip op. at 2 (Fed. Cir. May 1, 2013).”

They try to belittle the importance of this decision. They are also missing the point that in much of the world this decision would not required the court to even get involved. Meanwhile, reveals the EFF, CAFC is up to no good again, validating software patents:

The tortured history of Ultramercial v. Hulu continues, with a new ruling from the Federal Circuit upholding one of our favorite, most absurd patents: one that claims a process for doing no more than viewing ads online before accessing copyrighted content. How could that be patentable, you might ask. To which we might answer, good question.


First, in Mayo v. Prometheus, the Supreme Court invalidated a patent covering a medical diagnostic test. There, the Court held that a method cannot be patented where it adds “nothing specific to the laws of nature other than what is well-understood, routine, conventional activity, previously engaged in by those in the field.” More recently, in AMP v. Myriad, the Supreme Court stuck with this theme, holding that Myriad could not patent genes that occur in nature and stating that “Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.”

This CAFC decision is very serious an event and one pundit said about it that:

Opponents of software patents suffered a setback as the Federal Circuit today said a patent for displaying content before a video should not be considered an abstract idea.

Read about CAFC in our previous posts. We really need to set up a Wiki index about CAFC pretty soon.

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