Bonum Certa Men Certa

Relying on EPO, CAFC -- Originator of Software Patents in the US -- Tries to Bring Them Back Into Play in Microsoft Case

And the microcosm of patents lawyers helps CAFC by selective coverage and accompanying hype that is hardly justified

Omission bias Reference: Wikipedia



Summary: The highly biased Court of Appeals for the Federal Circuit (CAFC) rules in favour of a software patent, so the crowd of patent lawyers (or their sites) goes wild and makes it seem like an Earth-shattering development that suddenly makes software patents very eligible in spite of Alice/€§ 101

CONCERNS about the EPO's rogue management and the EPO scandals are globally justified as these matters impact not only Europe. And it's not just because the EPO is not a European body (it's international/globalist) but because it inspires moves in other countries/continents, where labour rights gradually get abolished/eroded and patents get expanded in terms of scope, number, injunctions, damages, and so on.



"New USPTO Patent-Eligibility Guidance Not So New," according to this pro-patents site. Lawyers' sites which comment on USPTO guidelines would rather have us believe nothing has changed. This one says that "this memorandum simply lays out the by now well-known two-part Alice/Mayo test, spells out explanations that examiners are supposed to give when making Section 101 rejections, and provides examiners with responses to arguments that applicants may make. Applicants may find this guidance useful in pressing examiners for better explanation of rejections based on allegedly unpatentable subject matter. However, I suspect applicants will continue to be frustrated by the seemingly subjective, and undeniably unpredictable, nature of many rejections under 35 U.S.C. €§ 101."

"The USPTO does not care what the Supreme Court says."Will this patent office stop issuing software patents at long last? We doubt it. The USPTO does not care what the Supreme Court says. It's pretty much the same at the EPO, where the EPC is repeatedly ignored (on multiple levels).

EPC rules are being ignored/crushed by Battistelli with his lousy leadership (while he makes up the EPO rules/guidelines with zero oversight) and in the mean time we learn that: "The CAFC in Enfish v Microsoft employed the EPO technical test to define what, if anything, was abstract."

Worth noting, as we have indicated before, is the gross deception (by omission) from lawyers' sites. When decisions are made against software patents in the US the lawyers' blogs and sites are mostly quiet; but they're all in hype and joy otherwise, amplifying the news. This is why the lawyers' sites were all over this case a few days ago [1, 2, 3, 4, 5, 6, 7, 8, 9], with headlines like "Federal Circuit Clearly Says Software Can Be Patentable" and summaries such as this: "A Federal Circuit panel (Judges Moore, Taranto, and Hughes) has unambiguously stated that some — one might even say much — software is patent-eligible, reversing findings of invalidity under 35 U.S.C. €§ 101 for two patents “directed to an innovative logical model for a computer database.” Enfish, LLC v. Microsoft Corp., No. 2015-1244 (Fed. Cir. May 12, 2016) (opinion by Judge Hughes). In addition to reversing a summary judgment of Section 101 invalidity, the court vacated a summary judgment of invalidity under 35 U.S.C. €§ 102, and left intact a summary judgment of non-infringement. But the reason why this case will be a big deal is the holding — and analysis — pertaining to the patent-eligibility of software inventions."

"Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents.""The EPO tech feature test is 40 years old," one person wrote. "Why didn't CAFC use it before and avoid all this jurisprudential bullshit?"

As Benjamin Henrion put it, "because the EPO test is garbage."

Another opponent of software patents asked, "US Court now using EU rules?"

A later question was, "so they just take rules from other Countries when they decide to?"

"The GAO Report has already cited the role of Software Patents in the problem," it was added, "FTC Report will probably say the same" (the patent maximalists slam it before it's even released).

"In her Dissent in Bilski," said one patent attorney, "J. Moore said that the abstract test would swallow circuit court decisions. It did. Hence, Enfish Today." Another tweet said: "Enfish v Microsoft et al.--Only 1 of 2 Fed Cir Decisions Holding Software Eligible under 101; Held Software Not Inherently Abstract"

"Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news."Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents. To quote: [1, 2] "Some much-needed sanity in #patent law: Fed Cir says today in Enfish v. Microsoft that #software NOT automatically "abstract" under 101 test [...] unfortunately, Alice left much to interpretation by courts & PTO, who took it as anti-software patent mandate" (still slamming the Supreme Court because, once again, CAFC is trying to promote software patents, which it made up or introduced in the first place).

Here is a press release about the case. Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news. This is their time to deceive, mislead, and engage in shameless self-promotion/marketing. IAM wrote: "Since the Supreme Court handed down its decision in Alice, many in the patent market have been searching for a case that provides some greater clarity on the Justices’ thinking or, at the very least, doesn’t simply see the Court of Appeals for the Federal Circuit (CAFC) affirm a lower court ruling and invalidate the patent in question. Those cases have been few and far between but the market took some encouragement this week from the CAFC’s decision in Enfish LLC v Microsoft, when the majority ruling explicitly stated that Alice did not simply eliminate broad swathes of software from patent eligibility."

"So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded."Here is what Gene Quinn's site and IP Kat wrote. So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded.

National Law Review went with the headline "CAFC Finds Software Patent Eligible Under 35 U.S.C. €§101" and Andrew Chung from Reuters said "Federal Circuit revives patent, expands software eligibility".

Software-related patents will survive challenges to their validity despite a U.S. Supreme Court precedent that has led to the widespread cancellation of patents, if they improve the way computers operate, a federal appeals court ruled on Thursday.

In a dispute involving Enfish LLC and Microsoft Corp, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit revived two Enfish patents on an advanced database, agreeing with the company's Cooley attorneys that the technology improves the functioning of a computer and thus deserved to be patented.


As Microsoft lobbies so hard for software patents, losing this case is possibly good news to Microsoft. One might argue that they're winning by losing here. This case isn't about patent trolls but about patent scope and the former "patent reform is minimal," Benjamin Henrion reminds people, "real reform involves discussing patents for software."

"Why did it rely on the EPO? It seems totally improper a thing to do."Right now there's just one case that shows digression (moving in the opposite direction) as "patent courts are always biased." (especially true in the case of CAFC, which is full of well-documented corruption)

"In a rare win for a software patentee," Patently-O wrote, "the Federal Circuit has rejected a lower court ruling that Enfish’s “self-referential” database software and data-structure invention is ineligible under 35 U.S.C. €§ 101 as effectively an abstract idea."

Why did it rely on the EPO? It seems totally improper a thing to do.

In other cases -- not the type of cases that patent lawyers want the public to know about, €§ 101 kills patents because it's about an "electronic device to obtain clinical trial data that would otherwise be collected by pen-and-paper diary" (to quote the decision, not the Docket Report):

The court granted defendant's motion to dismiss because the asserted claims of plaintiff’s clinical drug trial patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.


Another €§ 101 article from the Docket Report says "Popularity of €§ 101 Motions Weighs Against Certification for Interlocutory Appeal". To quote: "The court denied defendant's motion to certify for interlocutory appeal an earlier order denying defendant's motion to dismiss for lack of patentable subject matter because, although there was a controlling question of law that would materially advance the litigation, the court exercised its discretion not to grant appeal given the popularity of 35 U.S.C. €§ 101 motions."

The bottom line is this: Most decisions which involve €§ 101 wind up eliminating software patents. But reading the patent lawyers-dominated media (or their own 'news' sites) one might give the opposite impression.

Recent Techrights' Posts

Touch Grass
Happiness involves what humans have evolved to appreciate, not what humans create to sedate the mind (like skinnerboxes)
The Cyber Show on Technology Having Become a Tool of Mass Psychosis, Not Enablement or Emancipation
Technology as mass psychosis
The Rumour Said That a Second Wave of Microsoft Layoffs Would Come This Week (Ahead of Fake 'Results'), Maybe Tomorrow
Let's wait and see how "MSM" unfold
Karen Melchior Fought the Good Fight
stay tuned for Part 29
 
This Coming Weekend Marks 4 Years Since We Dumped Content Management Systems (CMSs) in Favour of Static Site Generators (SSGs)
the first page dated July 25
Slop's Latest Casualty: The Credibility of Linus Torvalds
If you care about millionaires and billionaires, follow Torvalds (he is already in that "club")
Techrights Will Become More Productive (More Output) Over Time
Big stories about to land
To Wikipedia, "Notability" is Just an Excuse to Hail People Who Serve Billionaires While Marginalising or Defaming the Rest
Wikipedia is an advertising space
Our Series About Solicitors Regulation Authority (SRA) and SLAPPs Will Resume Soon
Originally, in 2025, we gave ourselves 6 years (until 2031) to cover these issues, but we've seen since extended that to 10 years (until 2036) because of the amount of material we have
European Patent Office (EPO) Series: The EPO Transparency Gap
Despite the "European" tag in the organisation's name, the European Union has no jurisdiction over the European Patent Organisation
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 20, 2026
IRC logs for Monday, July 20, 2026
Links 20/07/2026: Lashes for Songs in Iran, Kurdish Language at Risk
Links for the day
Gemini Links 21/07/2026: The Boss Baby (2017) and 2026 Old Computer Challenge Epilogue
Links for the day
Canonical Staff Acting Like They Aim to Receive Job Offers From Microsoft
There are moreover allegations that Debian will do the same, in the same way Mono boosters infected both distros in tandem or in turn.
Worsening Staff Affairs at Microsoft
Microsoft is managing to piss off many of its own workers
Czech Mate for GNU/Linux on the Way
Czechoslovakia is having none of that "peace for our time" with Microsoft
Nobody Will be Left Who Trusts IBM Anymore
The common theme is, the management must be completely replaced as soon as possible and truth needs to come out
Wall Street is a Bubble and No Company is Worth 5 Trillion Dollars
It's not hard to see which stocks will crash the hardest (or fastest)
The Corrupt Have Historically Tried to Paint Their Exposers as the Real Problem
As usual, there are efforts to shoot or muzzle the messenger
Search Engine Market Share in Italy: Microsoft Falls to Third in Many Countries Including Italy
Expect more layoffs in Bing
Links 20/07/2026: Spotify Drowning in Slop, Expiry of Software Patents in MPEG-4
Links for the day
Gemini Links 20/07/2026: Another Step Towards Owning Personal Data and Gemtext2 Envisioned
Links for the day
European Patent Office (EPO) Series: Public Missions and Private Ambitions
Despite the French government's strong formal pushback, the lobbying momentum generated by Campinos and Negrão proved unstoppable
"DOOM" and "Bloodbath": the State of Microsoft and XBox
Way to piss off fans
Links 20/07/2026: Notes on E-mail Encryption, Torvalds and His Employer Paid a Lot to Promote Slop (Pyramid Scheme)
Links for the day
What a Difference Six Years Make...
We are also beta-testing a new feature for the site; we plan to announce it some time soon
When It Comes to Slop, Richard Stallman is Opposite of Linus Torvalds
When it comes to computing, Dr. Stallman has long been a voice of reason
Daniel Pocock is in Mainstream Media This Week
Pocock's haters will absolutely hate this
In His Departure Post, Poul-Henning Kamp (phk) Explains Why Linus Torvalds is Full of "Hot Air" and Slop Bubbles
Having lived through previous bubbles as a UNIX geek, phk cannot be ignored
Whistleblowers Keep Flowing
Later today a police investigator should phone us regarding death threats we've received
We Need Less Gadgets, More Humanity
If people are being honest with themselves, many of the gadgets they claim they "cannot live without" are just excesses and distractions they could definitely leave behind
Technology and Gadgets Got Obese, Just Like Their Users
They now sell us so-called 'phones' for slop
Daniel Pocock in The Guardian This Morning
There is an opportunity here to spread a message, even if Pocock won't win a seat
"Samsung Recently Projected a 19-fold Surge in Second-Quarter Operating Profit", Now There Are Mass Layoffs
In a 9-month period Samsung's debt rose by about 80%
Gemini Links 20/07/2026: Dungeon Meshi/Undertale Crossover, "The Hitchhiker’s Guide to the Dark Web and Beyond"
Links for the day
IBM's Control of the Media "Just Showed What Taking Accountability Does Not Look Like"
It is no secret that IBM pays the media
Microsoft Loses XBox Lawsuit, But There Are More
The collapse of studios continues
GNU/Linux Approaching International Average in Djibouti
One can envisage further gains for GNU/Linux, seeing Microsoft is in such a bad shape
Daniel Pocock "[t]he Australian Taking on Nigel Farage — from Down Under"
This can help raise awareness of some issues
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 19, 2026
IRC logs for Sunday, July 19, 2026
Misleading Coverage in Slashdot Promotes and Openwashes Slop
Piggybacking RMS for the headline seems like a PR stunt of sorts
As Envisioned, a Rebellion and Many Whistleblowers at Microsoft
Whistleblowers ensure Microsoft has totally lost control of the "narrative" (face-saving PR)
Microsoft is a Right-Wing Company
Just remember that when people call Microsoft "woke"
GNU/Linux "Market Share" Rises to About a Quarter in Sudan
Can anyone explain to us why?
Gemini Links 19/07/2026: Visiting Ethiopia, Two Dreams, and Price of Skinnerboxes
Links for the day
Tears in IBM, Company Falls Apart While Management Fakes "Performance" to Take Bonuses
Wall Street is a naked emperor
Telling Our Story
In the coming years we'll have some high-impact stories to share and generally tell without fear of reprisal
Microsoft XBox Studio Leaders Upset at What the New CEO Did
From what we can gather, in 2024 XBox was already entering what's known as a "death spiral". Now it's literally moving down the drain/pipe.
IRC Started in Finland, GNU/Linux Did Not
History is like that
GNU/Linux Rises to 8% in Bhutan, Same as the International Average
Taking note of estimated GNU/Linux share in that country, we see it hovering around the international median/average this month
Links 19/07/2026: "The Voice of Google" and "Chinese Surveillance Tech a Threat to Privacy"
Links for the day
Keep Both Eyes on the Ball
At the moment we have six series running in parallel; two of them concern the EPO
'Journalists' Who Help IBM Cover Up Fraud
Journalistic malpractice
The "Modern Linux" Song
Join us now, make the kernel
XBox Layoffs Vastly Bigger Than Microsoft Told the Press, Microsoft Keeps Trying to Change the Subject
Many so-called "XBox fans" are no more
Microsoft Lost 1,200 Billion Dollars in "Market Value", Take a Look at What Happened to Windows
while Windows continues to fall unstoppably GNU/Linux is surging
Links 19/07/2026: People in China Are Buying Feelings and 404 Media Has Third Anniversary
Links for the day
Gemini Links 19/07/2026: Camping, Health, and Hardware
Links for the day
The State of Slopfarms
Slopfarms or LLM slopfarms are a menace and a problem on the Web
GNU/Linux Rising to 6% in Brunei
seventh in the world for GDP (PPP) per capita
Free Software is Like an 'Activist Movement'
People who argue strongly in favour of something (even very good things) will attract the wrath of those whom they oppose
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 18, 2026
IRC logs for Saturday, July 18, 2026