Bonum Certa Men Certa

As Expected, Misleading Coverage Regarding Software Patents in the Wake of McRO v Bandai Namco

Reuters and Software Patents



Summary: How media which is dominated or steered by patent law firms covered the McRO v Bandai Namco case, and why it's bound to mislead a lot of people into thinking that software patents are OK

YESTERDAY we wrote about how patent law firms had turned rather nasty against anyone who enforces Alice and trashes software patents in lieu with the law. These firm are losing the battle, so now they play dirty. As far as we are aware, the McRO v Bandai Namco decision was first reported on by IAM and quickly thereafter mentioned by pro-software patents people (along with the misleading headline). In a nutshell, the Court of Appeals for the Federal Circuit (CAFC) defended a few software patents (or just one single patent!) in one rare case (less than 10% of the time do we see such an outcome at CAFC), so patent maximalists make a lot of noise and try to amplify the message (whilst ignoring the decisions they dislike because it's not supportive of their agenda and 'sales'). We expect to see a lot more articles about McRO v Bandai Namco because it is good marketing of their 'services' (or 'products'). They are hoping -- inter alia -- to help their large clients' agenda.



"These firm are losing the battle, so now they play dirty.""Don’t Assume an Abstract Idea" was the headline at Patently-O today. It said: "In an important Eligibility case, the Federal Circuit has ruled that MRCO’s software patent claims are eligible — rejecting District Court Judge Wu’s judgement on the pleadings that the non-business-method claims are invalid as effectively claiming an abstract idea. In my 2014 post in the case I wrote that the case may serve as an opportunity fo the Federal Circuit “to draw a new line in the sand.”"

"Federal Circuit rules software patents valid in McRO v Bandai Namco" was the headline in MIP. The truth of the matter is, the Federal Circuit did not rule software patents valid but only very particular patents (or patent), in one single case (it almost always finds software patents invalid). As long as the US Supreme Court does not rule again on software patents (and as we noted here before, no such case is pending at all right now), Alice still stands, it is very much applicable, and software patents are effectively or generally dead. CAFC must follow the lead of the Supremes (Justices). That's just how the law works.

"We expect to see a lot more articles about McRO v Bandai Namco because it is good marketing of their 'services' (or 'products')."The following headline (shown at the top) from Reuters is basically a lie. Software makers (developers) don't want software patents; few oligarchs that own large software monopolies may want them (e.g. IBM and Microsoft), but not actual software makers, people like yours truly. "Animation patent saved, software makers exhale," says the headline of this report, but every software maker (coder) out there is probably mortified by the idea that patent trolls with their software patents can use this decision to bolster their campaign of intimidation (patent shakedown). This is the same spin as found in the seminal headline from IAM -- spin which strives to convince us that software makers actually want software patents. It's a lie.

Speaking of software patents, watch the details of an upcoming event where software patents lobbyist David Kappos (and former USPTO Director) will share the stage with the current Director who reportedly denies fraud at the USPTO. "Michelle Lee has testified before a House of Representatives committee amid accusations of USPTO examiners claiming unsupported hours," MIP wrote. In addition, the chief judge of the Patent Trial and Appeal Board will be there. To quote IAM: "Joining keynote speaker USPTO Director Michelle Lee will be the chief judge of the Patent Trial and Appeal Board, David Ruschke, ex-USPTO Director David Kappos and former Federal Circuit Chief Judge Paul Michel. Alongside them will be senior representatives from companies that are closely involved in the ongoing patent reform debate, including Google, Johnson & Johnson, Qualcomm, Bristol-Myers Squibb and IBM. Also in the faculty, we have lead counsel in two of the pivotal Supreme Court patent cases of the last decade – KSR v Teleflex and Cuozzo v Lee – as well as several high-profile patent investors."

"This is the same spin as found in the seminal headline from IAM -- spin which strives to convince us that software makers actually want software patents. It's a lie."This seems like a corporate lobbying event, much like that EPO-supported pro-UPC event that IAM set up in the US earlier this year. We don't know what will be discussed in this event, but certainly it's so expensive to attend that it will essentially shut out dissenting views, just like Managing IP recently did (a pro-UPC lobbying event, as we noted last night). The EPO tends to pay published to sell out these days. Sometimes it works.

Taking note of the arrogance and the audacity of the patent microcosm, see this new article by Robert Sachs, a proponent of software patents. Yesterday he wrote: "Of course, one can say that the Federal Circuit is bound by precedent and has no choice but to follow the Supreme Court. This is true but fails to grasp the problem: The Federal Circuit does not even recognize that the Supreme Court's definition is wrong. There have been no dissents by the Federal Circuit raising this issue. Instead, they apparently believe that the Supreme Court is correct, and thus only raise other concerns about the application of the Mayo test."

This is part one of a newly-published series (maybe paper) and when Sachs says that the "Federal Circuit does not even recognize that the Supreme Court's definition is wrong" he basically flings another nonsensical attack on Alice/Mayo, much like Kappos and other interresants. Over at Patently-O, Professor Crouch goes with the headline "Patent Venue at the Supreme Court: Correcting a 26 Year Old Legal Error" and it's basically a rant which relates to the VENUE Act -- a subject which we covered here before.

"East Texas has been somewhat of a cesspool of patent trolls with their ludicrous software patents and they enjoy favourable treatment from the courts there."Crouch does not say "patent trolls" but instead speaks of East Texas. He wrote: "Patent litigation continues to be concentrated in a small number of venues. This case is potentially a big deal because it could eliminate this concentration — especially patent cases in the E.D.Texas. Both the PTO and Congress appear in favor of venue reforms, but statutory reforms will likely wait until the Supreme Court decides TC Heartland."

Well, any such reforms are sorely needed and the sooner, the better. East Texas has been somewhat of a cesspool of patent trolls with their ludicrous software patents and they enjoy favourable treatment from the courts there. It's time to stop this.

Recent Techrights' Posts

The Free Software Foundation (FSF) Has Un-cancelled the Best People, Just in Time for the Big 4-0
Mr. Oliva should have been there all along (since 2019)
Most "Modern" Technology Makes You Slower and Dumber
Because proprietary software makes you worse off
"What Comes After Free Software?" Wrongly Insinuates We've Reached the Goal (Prison is Not the Goal)
The oil tycoons use similar tactics against environmentalists, giving them fake "wins"
Making More Work Space
I learned the hard way that less is more in circumstances where more means distraction
MAHA is a Lie, Public Officials Never Valued Citizens' Health (They Still Value Private Businesses, Their Sponsors)
Reject demagogues
New Techrights Turns 2
Today starts the third year of the SSG-based Techrights
 
Gemini Links 24/09/2025: Gemlogs and Politics
Links for the day
Links 23/09/2025: Japan Limits Uses of Skinnerboxes ('Smartphones') With Toxic "Apps", Fentanylware (TikTok) Tapped by "MAGAts"
Links for the day
Brett Wilson LLP Has Just Been Sued (by Their Own Clients!)
Vladimir and Alla Yanpolsky sued Brett Wilson LLP in BL-2025-001167 at the end of last week
The Complaint About Brett Wilson LLP - Part II - UK SLAPPs for Americans, SLAPPs for Profit
Brett Wilson LLP has a track record of this kind
Mayday: Optus emergency calling crisis
Reprinted with permission from Daniel Pocock
Links 23/09/2025: Massive Data Breach, Slop Versus Productivity, and Vista 11 Update Breaks Things Again
Links for the day
Code of Censorship
Extortion is peace
Free Software Foundation (FSF) Has a New Press Kit for the Weekend After Next Weekend (40th Anniversary)
miles better than social [sic] media [sic] quips, moderated by narcissists and oil tycoons.
Microsoft Had Two Waves of Mass Layoffs This Month (That We Know of) and It'll Get Worse for Microsoft Soon
Will the axe fall again by month's end?
Gemini Links 23/09/2025: Happy Equinox, Photronic Arts, and Perception Cognition
Links for the day
Lessons We've Learned After 17 Years of American Hosting
GAFAM is "all-in" with the "Trump agenda"
Back to Normal Now, We Plan to Do More In-Depth Series (or Multi-part Stories)
Articles (or series thereof) that contain philosophy are important to us
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, September 22, 2025
IRC logs for Monday, September 22, 2025
Microsoft Media is Panicking Amid Mass Layoffs Every Month, H-1B Fees, and "Seattle’s Tech Scene in Trouble"
In "late stage Microsoft", copyleft becomes proprietary
The Next Wave of IBM/Red Hat Layoffs Being Discussed Already
Red Hat is sort of disappearing the way Tivoli did
What Scares Them the Most is Independent News Sites That They Cannot Control and Censor
Wikileaks was a good example of this
If You Don't Control Your Online Platform, Then Someone Else is Controlling You
be (or become) independent
Oracle Started This Year With Slop. Then It Stopped.
Passing fads are like this
Distros That Run on PCs Made 20 Years Ago and Don't Use Systemd
Betas for now
The Solicitors Regulation Authority (SRA) Has a Policy on Racism and Sexism
In then future we'll show the misogyny and racial slurs
The Complaint About Brett Wilson LLP - Part I - Abusing British Women on Behalf of American Men Who Abuse American Women
Transparency is important to us, so we've decided to make this series
Slopwatch: Google News and the Evident Slopfarm Infestation
This is what people get about Linux when they query Google for Linux
Links 22/09/2025: Murdochs Might Join Fentanylware (TikTok) 'Investors' (Masters), United Kingdom Recognises Palestinian Statehood
Links for the day
Gemini Links 22/09/2025: Esperanto Music History and Apps For Android
Links for the day
Links 22/09/2025: More American 'Censorship' (Retaliation for Journalism), Cheeto "Might Be Losing His Race Against Time"
Links for the day
The Blob Slop
Give me more words, give me some text
The 50-Pound Note Experiment and the "War on Cash"
Britain is actually seeing a rebound in cash payments, and it's not a temporary phenomenon
Slopwatch: Blaming the Victims for Microsoft's Failures and Plagiarising Phoronix
That's what Google has been reduced to: slop and slopfarms
Links 22/09/2025: Breaches, Windows TCO, and Arrests
Links for the day
Gemini Links 22/09/2025: Rabbit Hole and DeGoogling Fairphone
Links for the day
Links 22/09/2025: Russian War Planes Invade NATO Airspace While Dihydroxyacetone Man Escalates Attack on Free Speech Because of Critics
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, September 21, 2025
IRC logs for Sunday, September 21, 2025
Links 21/09/2025: "Hey Hi" (Hype) Under Fire, Fakes Identified; Tesla Burns Family
Links for the day
Google's Software is Malware and Malware in Mobile Devices
Originally posted by Rob Musial
Links 20/09/2025: Hegemony Coming to a Close, Luigi Mangione Ruled Not Terrorist
Links for the day
Gemini Links 21/09/2025: "Charlie Kirk Was a Hateful Piece of Shit" and Slop Code Attempted by Microsofter
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, September 20, 2025
IRC logs for Saturday, September 20, 2025