EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS

06.14.16

Enfish Case Has Not Salvaged Software Patents in the US, Proponents of Software Patents Admit

Posted in America, Law, Patents at 9:40 am by Dr. Roy Schestowitz

Much ado about [En]fish…

Fish

Summary: A roundup of news about software patents in the United States and why the media’s narrative (dominated by patent lawyers) clouds a rather grim reality for software patents, even after the Enfish v Microsoft case

THE USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.

SCOTUS and Halo v Pulse

“The USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.”Based on this new tweet, SCOTUS now recognises the patent trolls issue and even names it as such. This commentary on trolls ought to take into account the strong correlation between patent trolling and software patents (which trolls typically use). Here is what Patently-O wrote about SCOTUS just now: “The Supreme Court today issued an important unanimous decision in Halo v. Pulse – vacating the Federal Circuit’s rigid limits to enhanced damages in patent cases. The decision rejects the dual objective/subjective test of Seagate as “inconsistent” with the statutory language of 35 U.S.C. §284.”

The problem is, irrespective of damage limitations, patent trolls (which may be the spilling of a company’s patent portfolio acting as satellites) can just attack many thousands of firms or people, taxing each in turn. So loopholes remain in tact and overall it’s pretty ugly.

Court of Appeals for the Federal Circuit (CAFC)

It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC). Remember that it was CAFC which started software patenting in the first place and recently ruled in favour of Enfish, getting software patents proponents/maximalists (such as patent lawyers) all giddy and jubilant as though software patents are back with vengeance (they’re not).

Free Software

“It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC).”Software patents are problematic to software developers, no matter if they develop Free software or proprietary software. It’s probably a bit more of a problem for Free software developers because in order to freely distribute copies of their software they must not be coerced into making patent payments to anyone. “Patents and the open-source community” is a new article from LWN which deals with the topic. It is a very long article about a panel in which Professor “Moglen advised separating the past from the future when discussing tactics. For the future, he said, “we should prevent people from getting patents.” But, in the past, the problem is old patents “rising up and smiting” projects, harming innovation. The work that Choudhary does trying to abolish patents, he said, covered how to protect people in the future—and he fully expects SFLC to continue that work, arguing in front of the Supreme Court about the “design patent” case between Apple and Samsung. Furthermore, he said, “open-source software is an immense repository of prior art. Free software can help by educating people on all that we’ve invented and that you therefore cannot reinvent and patent.””

Samsung and Apple

Speaking of this (above-mentioned) “design patent” case between Apple and Samsung — a case which we last wrote about in the weekendFlorian Müller who dislikes Moglen (he once again told off the SFLC a few days ago) has “all the documents and the key points”. To quote his blog: “There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one. Previous rounds of amicus curiae briefs already demonstrated broadbased support. But the level of support the petition has just received at this decisive stage exceeds my expectations.”

Days ago we explained why this is relevant and important to Free software. Previously we also explained why design patents are often similar if not indistinguishable from software patents (UI+callback function/s).

Patent Lawyers Upset

“There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one.”
      –Florian Müller
Suffice to say, patent lawyers almost always support claimants (never mind justice or innovation). They want a lot of money to swap hands because it’s their source of revenue, other than/aside from obscenely high hourly charges. “How the United States Patent Office Became the Place Where Patents Go To Die” is an example of a new article which bemoans quality control and it is promoted by the usual suspects. It's not exactly surprising that the bubble is now imploding. Patent quality became a joke and over-evaluation of patents ensued. Opponents of the Alice decision continue to cheer for software patents (“Uber files patent on hyperlocal internet search” in this case), but sadly for them, the boat is leaving and software patents are now weaker (in the US) than they have ever been since their introduction by CAFC. “Recall that Enfish comes from a single CAFC panel,” IBM’s Manny Schecter wrote the other day, “when the CAFC ruled en banc in Alice it was splintered” (as a reminder, Schecter is a proponent of software patents not only in the US).

Reality Check From Software Patents Proponents

“I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections.”
      –IP Watchdog
We were rather amused to find the most pro-software patents site out there publishing “Is Enfish Much Ado About Nothing?” The gist of it is that the Enfish decision hardly changed anything at all. To quote the key part: “I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections. The patents at stake in Enfish appear to have been written with a confident view of the prior art and of the invention. So, if a specification does not confidently emphasize the “invention,” its “benefits over” conventional prior art, and “disparage” the prior art, will examiners and judges continue Step 1 characterizations at “such a high level of abstraction”? Is Enfish merely much ado about nothing?”

Yes, it is. Patent lawyers tried to over-emphasise it in order to change public opinion and influence policy-making people. The patent salespeople, on the other hand (in the same site), hope that this one single case will save software patents, not just at the USPTO but also at the courts. They are not paying attention to any case other than the Enfish v Microsoft case. How convenient…

Software Patents Proponents in Denial

Almost a month later (after the decision) Baker Botts LLP is still cherry-picking cases in an effort — however shallow — to shore up software patents. Banana IP (Banana Republic?) does the same kind of lobbying. We have already covered dozens of examples like these. These helped show how the media, especially lawyers’ media, continues to simply ignore every single case that’s ruled against software patents and lean on the rare exceptions instead. Edward Bray (of Marks & Clerk) is now cross-posting his ‘analysis’ in favour of software patents — an ‘article’ (lobbying/marketing) which we mentioned the other day. It just never stops, does it? Even a month later.

“Is Enfish merely much ado about nothing?”
      –IP Watchdog
The USPTO is doing the same thing, as we noted last month on a couple of occasions. Here is an explanation of how it goes: “Abstract idea – #USPTO memo on how the #CAFC Enfish patentability decision obstructed Alice http://www.uspto.gov/sites/default/files/documents/ieg-may-2016_enfish_memo.pdf … #swpat”

The patent office too is latching onto a single case when it serves to ‘sell’ more patents for more revenue. No separation between examination and policy?

Evidence serves to suggest that no matter what USPTO greed does, the courts continue to crush software patents, even after the Enfish decision. “Patents Directed to Electronic Delivery of Messages Found Ineligible in AZ in GoDaddy v. RPost,” Patent Buddy wrote the other day, linking to http://assets.law360news.com/0805000/805041/2016-06-07%20(doc%20344)%20order%20granting%20godaddy_s%20motion%20summary%20judgment%20and%20vacating%20trial%20dmwest_14483743(1).pdf (Alice is mentioned dozens of times in this decision’s PDF).

Many software patents have just died not only in the courts but also at PTAB, so how can patent lawyers argue with a straight face that a lot has changed? “Fatal Flaws of Subjective Alice/Mayo 101 Test [Are] Now Becoming Evident in Contradictory Findings Across Dist. Courts,” Patent Buddy wrote, but why is that test “subjective”? Because patent attorneys and lawyers don’t like it? Because it threatens their profit/income?

The matter of fact is that some courts get it right (they can see that algorithms are abstract), whereas some are still rather clueless (or bad lawyers for the defendant) if not corruptible, as was the case at CAFC before. Microsoft had a lot to gain from losing that case, as we explained last month.

“LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents.”Here is a case of software patents being used against Facebook, which has been stockpiling patents on software. To quote Patently-O: “Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database. Thus, applying this in LinkedIn, you might find that references to “Dennis Crouch” point to my LinkedIn profile. Of course, the way that Facebook & LinkedIn operate does not create the pointer-link for all occurrences of the term.”

LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents. What will this mean? Remember that the Enfish decision too involved Microsoft and people from Microsoft were pleased with the outcome. Speaking of Microsoft, the company is now hoarding software patents on quantum computing, based on this new listing. “Note that the USPTO also has a search engine for patent applications that are not yet granted,” wrote the author. “I am not listing those here. You can use that search engine yourself if you also want to see “Previews of the Coming Attractions”…”

Microsoft is by far the biggest threat to Free software when it comes to patent aggression.

Patents on Genome

“Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database.”
      –Patently-O
The Alice/Mayo test applies to more than just software. Bristows lawyers (i.e. patent profiteers who promote software patents) show no concerns about patent scope expansions. Based on this article from MIP, they aren’t going to say that patents on human genome are insane. Instead there’s promotion of that. As per the summary: “Genomic technology has rapidly created a multi-billion dollar growth industry. With life sciences companies scrambling in US and European courts for a share of the lucrative market, in-house IP counsel should start preparing for the next wave of IP litigation, explain Dominic Adair and Annsley Merelle Ward” (from Bristows).

Unless the USPTO gets a grip and stops granting patents on everything in nature, the valuation of patents and the confidence in the patent office will further erode, leaving patent lawyers reliant on illusions, lying to their potential customers, and overselling the prospects of patent litigation. How long can this madness last? It’s a bubble.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

What Else is New


  1. Links 18/9/2019: Fedora Linux 31 Beta, PCLinuxOS 2019.09 Update

    Links for the day



  2. Links 17/9/2019: CentOS 7.7 and Funtoo Linux 1.4 Released

    Links for the day



  3. EPO is Not European

    Internationalists and patent trolls are those who stand to benefit from the 'globalisation' of low-quality and law-breaking patents such as patents on algorithms, nature and life itself; the EPO isn't equipped to serve its original goals anymore



  4. The EPO's Central Staff Committee and SUEPO (Staff Union) Respond to “Fascist Bills” Supported by EPO President António Campinos

    Raw material pertaining to the latest Campinos "scandal"; what Campinos said, what the Central Staff Committee (CSC) said, and what SUEPO said



  5. Storm Brewing in the European Patent Office After a Hot Summer

    Things aren't rosy in EPOnia (to say the least); in fact, things have been getting a lot worse lately, but the public wouldn't know judging by what media tells the public (almost nothing)



  6. Why I Once Called for Richard Stallman to Step Down

    Guest post from the developer who recently authored "Getting Stallman Wrong Means Getting The 21st Century Wrong"



  7. As Richard Stallman Resigns Let's Consider Why GNU/Linux Without Stallman and Torvalds Would be a Victory to Microsoft

    Stallman has been ejected after a lot of intentionally misleading press coverage; this is a dark day for Software Freedom



  8. Links 16/9/2019: GNU Linux-libre 5.3, GNU World Order 13×38, Vista 10 Breaks Itself Again

    Links for the day



  9. Links 16/9/2019: Qt Quick on Vulkan, Metal, and Direct3D; BlackWeb 1.2 Reviewed

    Links for the day



  10. Richard Stallman's Controversial Views Are Nothing New and They Distract From Bill Gates' Vastly Worse Role

    It's easier to attack Richard Stallman (RMS) using politics (than using his views on software) and media focus on Stallman's personal views on sexuality bears some resemblance to the push against Linus Torvalds, which leans largely on the false perception that he is sexist, rude and intolerant



  11. Links 16/9/2019: Linux 5.3, EasyOS Releases, Media Backlash Against RMS

    Links for the day



  12. Openwashing Report on Open Networking Foundation (ONF): When Open Source Means Collaboration Among Giant Spying Companies

    Massive telecommunications oligopolies (telecoms) are being described as ethical and responsible by means of openwashing; they even have their own front groups for that obscene mischaracterisation and ONF is one of those



  13. 'Open Source' You Cannot Run Without Renting or 'Licensing' Windows From Microsoft

    When so-called ‘open source’ programs strictly require Vista 10 (or similar) to run, how open are they really and does that not redefine the nature of Open Source while betraying everything Free/libre software stands for?



  14. All About Control: Microsoft is Not Open Source But an Open Source Censor/Spy and GitHub/LinkedIn/Skype Are Its Proprietary Censorship/Surveillance Tools

    All the big companies which Microsoft bought in recent years are proprietary software and all of the company’s big products remain proprietary software; all that “Open Source” is to Microsoft is “something to control and censor“



  15. The Sad State of GNU/Linux News Sites

    The ‘media coup’ of corporate giants (that claim to be 'friends') means that history of GNU/Linux is being distorted and lied about; it also explains prevalent lies such as "Microsoft loves Linux" and denial of GNU/Free software



  16. EPO President Along With Bristows, Managing IP and Other Team UPC Boosters Are Lobbying for Software Patents in Clear and Direct Violation of the EPC

    A calm interpretation of the latest wave of lobbying from litigation professionals, i.e. people who profit when there are lots of patent disputes and even expensive lawsuits which may be totally frivolous (for example, based upon fake patents that aren't EPC-compliant)



  17. Links 15/9/2019: Radeon ROCm 2.7.2, KDE Frameworks 5.62.0, PineTime and Bison 3.4.2

    Links for the day



  18. Illegal/Invalid Patents (IPs) Have Become the 'Norm' in Europe

    Normalisation of invalid patents (granted by the EPO in defiance of the EPC) is a serious problem, but patent law firms continue to exploit that while this whole 'patent bubble' lasts (apparently the number of applications will continue to decrease because the perceived value of European Patents diminishes)



  19. Patent Maximalists, Orbiting the European Patent Office, Work to 'Globalise' a System of Monopolies on Everything

    Monopolies on just about everything are being granted in defiance of the EPC and there are those looking to make this violation ‘unitary’, even worldwide if not just EU-wide



  20. Unitary Patent (UPC) Promotion by Team Battistelli 'Metastasising' in Private Law Firms

    The EPO's Albert Keyack (Team Battistelli) is now in Team UPC as Vice President of Kilburn & Strode LLP; he already fills the media with lies about the UPC, as one can expect



  21. Microsoft Targets GNU/Linux Advocates With Phony Charm Offensives and Fake 'Love'

    The ways Microsoft depresses GNU/Linux advocacy and discourages enthusiasm for Software Freedom is not hard to see; it's worth considering and understanding some of these tactics (mostly assimilation-centric and love-themed), which can otherwise go unnoticed



  22. Proprietary Software Giants Tell Open Source 'Communities' That Proprietary Software Giants Are 'Friends'

    The openwashing services of the so-called 'Linux' Foundation are working; companies that are inherently against Open Source are being called "Open" and some people are willing to swallow this bait (so-called 'compromise' which is actually surrender to proprietary software regimes)



  23. Microsoft Pays the Linux Foundation for Academy Software Foundation, Which the Linux Foundation is Outsourcing to Microsoft

    Microsoft has just bought some more seats and more control over Free/Open Source software; all it had to do was shell out some 'slush funds'



  24. Links 14/9/2019: SUSE CaaS Platform, Huawei Laptops With GNU/Linux

    Links for the day



  25. Links 13/9/2019: Catfish 1.4.10, GNOME Firmware 3.34.0 Release

    Links for the day



  26. Links 12/9/2019: GNU/Linux at Huawei, GNOME 3.34 Released

    Links for the day



  27. Links 12/9/2019: Manjaro 18.1 and KaOS 2019.09 Releases

    Links for the day



  28. EPO: Give Us Low-Quality Patent Applications, Patent Trolls Have Use for Those

    What good is the EPC when the EPO feels free to ignore it and nobody holds the EPO accountable for it? At the moment we're living in a post-EPC Europe where the only thing that counts is co-called 'products' (i.e. quantity, not quality).



  29. Coverage for Sponsors: What the Linux Foundation Does is Indistinguishable From Marketing Agencies' Functions

    The marketing agency that controls the name "Linux" is hardly showing any interest in technology or in journalism; it's just buying media coverage for sponsors and this is what it boils down to for the most part (at great expense)



  30. Watch Out, Linus Torvalds: Microsoft Bought Tons of Git Repositories and Now It Goes After Linux

    Microsoft reminds us how E.E.E. tactics work; Microsoft is just hijacking its competition and misleading the market (claiming the competition to be its own, having "extended" it Microsoft's way with proprietary code)


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts