Bonum Certa Men Certa

Patent Lawyers Love (and Amplify) Halo and Enfish, Omit or Dismiss Cuozzo and Alice

Lobbying or marketing dressed up as 'analyses'

Selective perception Reference: Selective perception



Summary: By misinterpreting the current situation with respect to software patents and misusing terms like "innovation" patent lawyers and others in the patent microcosm hope to convince the public (or potential clients) that nothing in effect has changed and software patents are all fine and dandy

THE USPTO gradually moves away from software patents, whereas the EPO moves closer to them. That's quite a twist and an unexpected development, but that's where we are today.



Two days ago we wrote about the Cuozzo decision. We are very pleased as it is another major blow to software patents. Patent lawyers' sites are still talking about it, but not so much (interest has been lost exponentially). Patently-O, for example, says about another case that "Chief Judge Prost likely held the decision release to await the Cuozzo affirmance that implicitly supports the court’s ruling here."

“In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a "death squad" will have to find another lobbying strategy.”Cuozzo coverage from MIP's Natalie Rahhal said that the "Supreme Court’s decision in Cuozzo v Lee maintains the different standards for claim construction used in the Patent Trial and Appeal Board (PTAB) and the district courts. The ruling indicates that the Court believes the USPTO is performing its inter partes reviews (IPR) in accordance with the America Invents Act (AIA)."

In a nutshell, PTAB survives and all those cranky patent lawyers who compared it to a "death squad" will have to find another lobbying strategy. TechDirt wrote about the decision as follows:

Supreme Court Says, Yes, The Patent Office Can Review Crappy Patents Using Broad Standards



Last week, the Supreme Court made life a little easier for patent trolls, and this week it made life a little harder. At issue was just how the Patent Office could review patents after they were granted. The last round of patent reform, the America Invents Act in 2010, included something called Inter Partes Review (IPR) that allows anyone to basically challenge a bad patent, presenting specific evidence that it shouldn't have been granted due to prior art. A special board at the Patent Office, the Patent Trial and Appeal Board (PTAB), can then decide to review the patent if it decides that there's a "reasonable likelihood" that it will invalidate some of the patent claims due to the submitted evidence.

In the case that went to the Supreme Court, Cuozzo Speed Technologies was upset that the PTAB knocked out some patent claims on a patent it held after Garmin filed an IPR effort with the Patent Office, claiming that one of the claims in a Cuozzo patent was invalid thanks to prior art. The PTAB knocked out three claims from the patent, saying that two other claims were equally impacted from the prior art. Cuozzo appealed to the Federal Circuit (CAFC) on two points: first it was upset that the PTAB reviewed three claims when Garmin really focused on just one. And, second, it was upset that the PTAB used "the broadest reasonable construction" of the claims rather than the "ordinary meaning as understood by a person of skill in the art." CAFC sided with the PTAB, saying that the law says that you can't appeal what PTAB chooses to review, and that the standard it used was perfectly reasonable.



There is not much coverage of this from pro-software patents people, as one might expect. It's that propaganda by omission as we noted here before. More than a month after Enfish Arent Fox LLP publishes "Enfish Database Case Brings New Twist in Software Patentability Saga" (no, not really). Growing desperate there for good news, don't they? Enfish is old news and it was quickly contradicted by the very same court only a few days later.

"There is not much coverage of this from pro-software patents people, as one might expect. It's that propaganda by omission as we noted here before."Here is IP Kat's very latest on SCOTUS. It mentions the Halo case (pro-patent trolls) and says: "Is the U.S. Supreme Court pro-patent or anti-patent? One of my favorite books on patent reform is by economists Adam B. Jaffe and Josh Lerner titled, "Innovation and its Discontents: How Our Broken Patent System is Endangering Innovation and Progress and What to do About It," published in 2004 by Princeton University Press. One of the insights from the book is the recognition of how patent legal protection moves like a pendulum throughout history. Notably, we tend to swing either too far in favor of protection or too far away from protection. We have trouble finding the middle way. On June 13, 2016, the U.S. Supreme Court in Halo Electronics v. Pulse Electronics and Stryker Corp. v. Zimmer (Halo) made it easier to obtain enhanced damages for willful infringement in patent infringement cases."

It's not a bad post actually and a comment on the above says: There is a clear common theme among most of the patent cases decided by the US Supreme Court in the last couple of years: the CAFC should stop laying down hard-and-fast rules for judging inventive step, patent-eligibility, damages, attorney fees, injunctions, etc. etc. etc. If there is a connection with fear for patent trolls, it is probably that inflexible rules create too many opportunities for abuse."

"Funny how they mostly evade cases that are not -- shall we say -- so "convenient" to patent lawyers..."In this particular case not patent scope but the scope of damages was at stake. Those quite likely to benefit from this decision are patent trolls, which most often use patents on software (hence the relevance to patent scope too). IP Kat has also just published this analysis from Taly Dvorkis (Allen & Overy LLP). It's about the Halo case as well. Funny how they mostly evade cases that are not -- shall we say -- so "convenient" to patent lawyers... this particular analysis was posted by a Bristows employee and longtime proponent of software patents, the UPC, etc.

To be frank, my feelings towards IP Kat soured recently, especially in light of the censorship. It's not about my particular comment but about input I receive about other people whose comments too are being censored, presumably for not concurring with the 'party line' (I have repeatedly asked IP Kat on what basis my comment was deleted and I am still waiting for a response, probably in vain). The worst situation is one where people like Merpel hardly write anymore and people from patent law firms write the lion's share of the blog's articles. "I'm fully aware of this," told us someone from the EPO about IP Kat. "Unfortunately I have to agree with you and since Jeremy left the Kat their EPO reports leave a lot to be desired. Also the frequency of reporting (as you already mentioned in Techrights before) dropped remarkably. I suspect pressure from the Dark side..." (EPO management, which earlier this month banned IP Kat).

Recent Techrights' Posts

Wall Street Does Not Care About Microsoft's Impending (August) Layoffs, It Believes Lies From Microsoft, Whose Debt Grows Rapidly
If Microsoft is doing so well and swimming in money, why so many cuts (about 29,000 layoffs so far this year)?
Riot for peace & Love: Catholic Influencers and Digital Missionaries welcome Jubilee of Youth
Reprinted with permission from Daniel Pocock
 
An Illusion and Cult Worship of Magnitude (Ubiquity as "Victory")
GNU has been around for over 40 years and it'll likely continue to exist for another 40 (in some form)
Google: From Pointing to Relevant Sites to Pointing to Social Control Media to Actually Parroting Social Control Media as "Facts"
Google has become a misinformation company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 30, 2025
IRC logs for Wednesday, July 30, 2025
How to Report Apple Layoffs Without Saying the "L" Word
don't look for the "L" word
Wayland Considered Harmful (to GNU/Linux Adoption)
it's not limited to games
My Experience With Judges Has been Positive, But We Must Still Pursue SLAPP Reform in the United Kingdom
We believe it'll be a "feather in the cap" if we can help change laws in the UK to better protect investigative reporters
Slopwatch Makes the Web Better
Remember what happened to BetaNews?
Slopwatch: Google News is Pumping in Lots of Web Traffic Into Fake Sites That Say "Linux"
somewhere between 30% and 40% of today's "news" about "Linux", as seen by Google News, is LLM slop
Links 30/07/2025: Climate Calamities Highlighted, Kyrgyzstan Crackdown on Expression/Freedoms
Links for the day
Gemini Links 30/07/2025: Watson’s List of Limits, Lysenko 2000
Links for the day
Some People See What Others See... But Only 40 Years Later
When people deviate from "the norm" they typically get ridiculed and dismissed as "crazy"
Links 30/07/2025: Tea Class Action and Google Killing the Web With Slop
Links for the day
Last Month Our IRC Community Turned 17
Funnily enough we never missed a single day when it comes to logging
"The Unix Kernel"
Linux was inspired by MINIX
The Register Relays Microsoft Marketing, Dubs That Marketing "Research"
Hours ago they did a "Microsoft sez" piece
Dealing With Sociopaths, Liars, and Cranks
A dysfunctional society such as this would never develop
Not Owning Mobile Phones
It's not about resistance; it's common sense
Google 'Search' is Fast Becoming No Better Than Social Control Media Infested With Bots
Google emerged almost 30 years ago as a company looking to organise the Web and direct people towards informative pages. That Google is dead.
PCLinuxOS Had Functional Backups Before the House Fire, the Site Will be Restored in New Webhost
This is the direction we want for GNU/Linux, not some IBM sales strategy
Gemini Links 30/07/2025: Two Sides of Me and "Hooked on Cosmic Voyage"
Links for the day
Microsoft Will Continue Resorting to Crimes in Order to Keep GNU/Linux Usage Down
It is a real problem and we'll revisit it later this week
GAFAM 'Revolving Doors' at The Register and a "Bribe Price List"
"an analyst at Microsoft"
Microsoft Rapidly Shrinking (No, It's Not About Efficiency, It's About Unbearable Debt)
We'll soon see how much debt grew in the past quarter
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 29, 2025
IRC logs for Tuesday, July 29, 2025
Corruption is the Standard Operating Procedure at the European Patent Office (EPO)
The EPO is a dictatorship that stains Europe
Local Staff Committee Munich (LSCMN) at the European Patent Office (EPO) Requests an Urgent Meeting to Avoid Abolishing the Office
This is dictatorship led by the most corrupt
Slopwatch: Fake 'Linux' 'Articles' and Spamfarms/Slopfarms
at least 5 fake articles in one day
Gemini Links 29/07/2025: Wayland Unfit for Use and LLM Slop Faking One's Language Skills With Robot Communications
Links for the day
Before the OSI Was Bribed and Hijacked by Microsoft via GitHub and Compromised Management...
The OSI isn't even remotely "woke"
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
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
"Four decades; Four freedoms; For all users" Now as a T-shirt
That's shown along the sidebar
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
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
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
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
Yes, Microsoft is the Problem
"I am no MS shill."
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"
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
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