Bonum Certa Men Certa

How the Patent Lawyers' Microcosm Continues to Boost Software Patents Filth by Misdirecting Readers, Relying on Highly Selective Coverage

Narrowly covering Enfish v Microsoft as though it's the only case law in the world, in order to bypass the law-making process, hoping to salvage software patenting

Caselaw



Summary: Under the guise of reporting/analysis/advice the community of patent lawyers is effectively lobbying to make software patents popular and widely-accepted again, based on one single case which they wish to make 'the' precedent

OVER the past week we have composed not one but two articles about how the USPTO distorts patent law [1, 2]. We showed examples of USPTO bias when it comes to software patents, which are a source of USPTO revenue (at everyone else's expense). The bias is showing, as even post-Alice the USPTO cherry-picks cases about software patents, trying to re-enable them. Reed Smith LLP, i.e. patent lawyers, is reaffirming what we wrote [1, 2] and so do people from the "The Software Intellectual Property Report" (Bejin Bieneman plc). Another firm of lawyers, Burns & Levinson LLP, is framing this as an "availability" problem, as if software patents are products. Where are the voices of reason in all this and why aren't actual developers consulted on these matters? Ricardo Ochoa of PretiFlaherty (patent lawyers) failed to even hide his bias on the subject. They all try to attract customers based on the misguided belief or hope that they'll manage to sneak software patents into the system, with help from an apathetic (about quality) USPTO. Where does this end? The most vocal longtime proponents of software patents even try using CAFC to broaden the appeal and scope of such patents. All of them rely on pretty much one single case which we mentioned here before, namely Enfish v Microsoft [1, 2, 3].



"Quite simply, being sincere and honest would not be convenient a strategy for people who make money ramming software patents down the USPTO's belly."Jason Rantanen, writing as a guest at Patently-O, deals with Enfish v Microsoft and In re TLI Communications. He is now comparing cases/studying CAFC to better understand how to get software patents granted in spite of the Alice decision.

"This month’s decision in Enfish," he writes, "was an overnight sensation—almost literally, as mere days later the PTO issued the new examiner guidance to implement the decision that Dennis wrote about last week. That guidance emphasizes the Federal Circuit’s recognition of Mayo Step-1 as a meaningful inquiry and focuses on particular aspects of Enfish that relate to that inquiry: comparisons to prior abstract idea determinations; a caution against operating at too high a level of abstraction of the claims, and the rejection of the tissue-paper argument that use of a computer automatically dooms the claim (it doesn’t)."

But actually, those two cases are just a couple among many more (even at CAFC alone), and the overwhelming majority of them were against software patents. Patent lawyers latch onto Enfish v Microsoft as opportunists with agenda and the public is barely told anything at all about this overwhelming majority of cases, which reaffirm the demise of software patents. One person, writing about another CAFC case, says: "This case is notable mainly because it is the first Federal Circuit decision to distinguish itself from Enfish LLC v. Microsoft Corp., and also because it is another reminder that the wall between patentable subject matter, obviousness, and written description is now rubble."

But why only rely on the latest two cases to discern/differentiate between patent-eligible and patent-ineligible? Why not rely on Alice and all the cases that cite it (probably many hundreds if not over a thousand)? Quite simply, being sincere and honest would not be convenient a strategy for people who make money ramming software patents down the USPTO's belly.

One new report, titled "Claims to Devices Sharing GPS Addresses Not Patent-Eligible in E.D. Texas", says:

Claims to Devices Sharing GPS Addresses Not Patent-Eligible in E.D. Texas



[...]

Judge Schroeder began by explaining that the magistrate judge was correct to decide the patent-eligibility question at the pleadings stage. The plaintiff had objected to the court’s refusal to consider its expert’s declarations, which were outside the pleadings. However, the magistrate properly relied on the plain language of the patent claims, and the plaintiff’s own description of the claimed subject matter. The expert’s declarations were not material to patent-eligibility and failed to provide adequate basis for their conclusions. Where “patent claims on their face are plainly directed to an abstract idea,” a dismissal at the pleadings stage was appropriate.

Moreover, Magistrate Judge Love properly “found that the ’503 Patent is directed toward the abstract idea of address retrieval.” The plaintiff argued that the magistrate judge had improperly used the “machine-or-transformation” test. Instead, Judge Schroeder explained, the magistrate judge had simply found that each of the problems the ’503 patent purported to solve “simply relate[s] to ease, accuracy, and efficiency benefits achieved when any fundamental or well-known concept is implemented on a computer device.”

Finally, addressing the second prong of the Alice/Mayo test, the claims recited no inventive concept. The plaintiff had essentially argued that “that the ‘503 Patent is inventive because it requires specialized hardware and software, and is limited to a specific type of data.” However, as the magistrate judge found, “a GPS device performing generic computer tasks does not transform the claims into patent-eligible subject matter.”


That last sentence is interesting because it shows how much effort was made to exploit EPO-style loopholes, wherein one tries to portray software as "hardware" using the device it happens to be running on (even a generic computer or GPS device).

The US is moving away from software patents. Many patent lawyers are either in denial about it or hope to use self-fulfilling prophecies to impose their will on the system.

Recent Techrights' Posts

Before the OSI Was Bribed and Hijacked by Microsoft via GitHub and Compromised Management...
The OSI isn't even remotely "woke"
The OSI Has Been Silent for Over 3 Weeks, It Has a Severe Trust Issue After Promoting Microsoft and Proprietary GitHub
OSI took a lot of money from Microsoft to become a Microsoft lobbyist
Bribery is OK If You Work for Microsoft (No Punishment Expected)
It's very troubling and a symptom of a broken society/system when particular laws or rules are applied and enforced against some people but not against others
Someone Should Remind Microsoft Lunduke That Microsoft Hires Many Sexual Criminals and Pedophiles as Well
Microsoft Lunduke on an "expedition" to find one or more perverts, then generalise to everyone in the "community"
Cash Machines (ATMs) Make Mistakes and They're Proprietary Software
Correcting mistakes is a colossal challenge
Yes, Microsoft is the Problem
"I am no MS shill."
Another Failed Use Case for Chatbots (LLM): Legal Advice and Analysis
They're just some self-discrediting toy that costs way too much to operate
 
Gemini Links 29/07/2025: Wayland Unfit for Use and LLM Slop Faking One's Language Skills With Robot Communications
Links for the day
Nailing the "Hey Hi" (AI) Hype Bubble
So-called "hey hi" as they define it now is all about large companies or regimes remotely controlling the processes running on your machine and even your very own behaviour on your machine, which is in effect no longer your machine but some remotely controlled apparatus
"Four decades; Four freedoms; For all users" Now as a T-shirt
That's shown along the sidebar
Links 29/07/2025: Bad Climate and "Fair Software Licensing" Blasts Microsoft
Links for the day
Links 29/07/2025: Data Brokers Gone Wrong/Rogue and "Copyright Thicket"
Links for the day
Slopwatch: Linuxconfig.org, Linuxsecurity.com, Fagioli, The Register
Today's "Slopwatch" isn't the first article about LLM slop
We Cover Topics Other Sites Are Too Afraid to Cover (Even When They Know the Facts)
It's not that they doubt the truth, they just realise there may be consequences for talking about it
They Try to Tell Us the Free Software Foundation Inc is Dying, But Its Revenue Doubled Since the Dot-Com Bubble Burst
Being in "Activism" is never easy; but it does positive things for society
It's About the Cost of Workers, Not the Fictional Skills Shortage (That Does Not Exist, the Media Spreads False and Sometimes Self-Fulfilling Narratives)
This issue isn't limited to computing, some dub it "globalism"
Links 29/07/2025: More Pushbacks Against Slop and More Praises of Tom Lehrer
Links for the day
Gemini Links 29/07/2025: Purple Yarrow and Understanding Op Amps
Links for the day
This Monday WebProNews Absolutely Flooded the Web With Fake (LLM Slop) 'Articles' About "Linux", Google News Promoted Them as Legitimate
All of the following are fake articles attributed to pseudonyms or authors that don't exist; the images are also slop. Why does Google promote these?
Linuxiac is Not a Slopfarm, But at Least Some of Its Articles Are Machine-Generated Fakes
what we said about it was correct
Expect More Microsoft Layoffs
"Are more job cuts coming?"
Microsoft Behaving Like It's Running Out of Money to Pay Salaries
Does that seem like the behaviour expected from a company which claims it is "worth" trillions?
LWN Downtime Due to Linode, Not LLM Bots
"I’ve received an email letting me know that there is a potential for data loss."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 28, 2025
IRC logs for Monday, July 28, 2025
Nonfree Software in My Bank, by Richard Stallman
Updated 8 hours ago
Links 28/07/2025: Science, Health, and Conflicts
Links for the day
Gemini Links 28/07/2025: Healthy Self-Image With Autism and a "New Life"
Links for the day
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles