Bonum Certa Men Certa

After McRO v Namco Case (at CAFC) the Patent Microcosm Works Overtime to Produce Pro-Software Patents Propaganda, Smear the Supreme Court

Writing their nonsense only when it helps them attract 'sales' (where desired 'products' are typically lawsuits)

A typewriter



Summary: Increasingly desperate to convince people to pursue software patents and/or use their software patents to initiate growingly risky lawsuits (high risk of losing), the patent microcosm hugs McRO v Namco while distorting the complete record of the Court of Appeals for the Federal Circuit (CAFC) on this subject

WITH patent quality still a huge problem at the USPTO, as we last noted in our previous post, it's only expected that many invalid software patents remain inside the system, probably hundreds of thousands of them (some have expired by now and will thus never be invalidated).



After Alice (2014 decision by the Supremes) a lot of software patents essentially became invalid, but only upon reassessment/assertion/challenge/appeal. The Court of Appeals for the Federal Circuit (CAFC), quite notably, finds them invalid about 80%-90% of the time. CAFC is where software patents typically come to die (the question has not returned to the Supreme Court since 2014). There's rarely a chance for appeal after that, maybe just a referral or some other extraordinary circumstances.

"They're most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant)."Patent lawyers are rightly upset (from their point of view that is hinged on profits from legal fees) at the Supremes for 'interfering' with the patenting of software. They are also upset at CAFC for invaliding so many software patents. They're most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).

How do patent law firms respond to the current situation? Simple! They lie. They cherry-pick, they spread half-truths, they insult judges, they shame or block other people (yours truly included), and they generally show their true selfish selves. I have spent years writing about this and I saw how bad this can get. These people are not friends of investors and inventors. They're leeches. They just try to come across as professional, objective, and law-abiding.

Last week we wrote several articles about McRO v Namco noting (quite correctly as it turned out) that patent law firms would start another Enfish-like extravaganza in the press. They latch onto this decision in an effort to market themselves and mislead the public (potential clients). Here, in one of their blogs, the predators are trying to take down the Supreme Court's decision on Alice. Section 101 is named as though it's a nuisance that needs to be removed. Here is one of the predators saying that he is "not sure CAFC using "preemption" in same way envisioned by SCOTUS in Alice-MCRO seems more like "passes step 2" case" (refers to steps in the law).

"They just try to come across as professional, objective, and law-abiding."An 'article' or 'analysis' (really marketing/self promotion) by Joel Bock, David Metzger, andEric Sophir of Dentons says "McRo decision gives software/computer-based patents a big boost," but that's pure sensationalism. This headline is wishful thinking nonsense as it ignores ~90% of CAFC's decisions on the subject. How convenient...

Where were sites like these each time CAFC ruled AGAINST software patents? Don't believe patent lawyers who say software patents in the US are suddenly fine. For those who think it's just an isolated article or few articles, see also [1, 2, 3, 4, 5, 6, 6, 7, 8, 9, 10, 11, 12]. We don't have time to rebut each of these individually, but what we have here is rigged “media” of lawyers. Over 20 articles have been produced about a CAFC decision in favour of software patents and usually there are zero or very few about decisions against software patents. "Liars" might not be the right word to describe the authors by; they're just opportunistic and they are selectively covering things so as to promote software patents under the guise of 'analysis'. We saw this many times before and provided evidence of it.

"Don't believe patent lawyers who say software patents in the US are suddenly fine."Noteworthy is the fact that the legal firm which fought for software patents here is the same firm that works for Microsoft (on patents) and the EPO hired to bully me (Mishcon de Reya). Here is their press release about it. They are clearly hostile towards people like me, for at least 3 reasons (EPO pays them to send me threatening legal letters, Microsoft pays them to fight on the patent front, and they are working to defend software patents). Speaking of Microsoft, the company still says it "loves Linux" but it also loves software patents which are inherently not compatible with Linux. Here is yet another 'article' (from a Microsoft advocacy site) showing that Microsoft celebrates the above decision. We gave another example of this several days ago. The intersection of interests here is uncanny.

What did Watchtroll say about all this? We mentioned some of his responses before (widely-cited by others in the patent microcosm on the face of it), but now there's more on other subjects [1, 2], still advancing a patent maximalism agenda (as if limiting patent scope is a sin).

Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.

IAM's writers, longtime propagandists of software patents and PTAB bashers, carry on passing off agenda as 'news', this time with the headline "After the CAFC's Planet Blue decision early Alice motions may now fade away" (citing only the patent microcosm, e.g. a partner in New York-based firm Kroub Silbersher & Kolmykov).

"Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest."We are still waiting for IAM to give a platform not just to patent lawyers who profit from software patents but actual programmers. Not that it ever happens...

"In the following piece," IAM wrote, "Silbersher argues that the true significance of the case is not what it says about software patentability, but in the way it may affect how and when courts handle motions to dismiss based on the Supreme Court’s Alice decision. Read with the earlier CAFC judgments in Enfish and Bascom, Silbersher states, Alice motions at the front end of a litigation are set to become significantly less attractive. For patent owners, that is very good news."

That's just another example of lawyers name-dropping Enfish and Bascom, hoping that readers will pay attention to none of the other decisions (all against software patents as of late). This isn't reporting, it's lobbying.

Speaking of lobbying, David Kappos rears his ugly head again. He was hired by large corporations including IBM (his former employer) to help demolish Section 101 and "IBM’s Chief Patent Counsel Manny Schecter welcomed the McRO decision," according to the above. Indeed, based on his tweet, IBM is still against the Supreme Court and for software patents. Benjamin Henrion told him that "freedom of programming is a one liner."

"How far will the patent lawyers go in their attempt to save software patents?"The software patents proponents of IBM, a huge patent bully, are at it again. They just don't seem to care what the Supremes say. Here comes IAM trying to shoot down Section 101 at a legislative level. To quote: "Of course, the likes of former Chief Judge Michel would argue that the fundamental test that the court is trying to apply to determine whether something is patent eligible remains inherently flawed. But as the case law on 101 as it applies to software begins to mount from the Federal Circuit, members of the tech community can at least rest a little easier that question marks no longer hang over large parts of their patent portfolios. If nothing else, that is to be welcomed."

IAM says that "members of the tech community can at least rest a little easier" with software patents, but that's a lie because technical people dislike these. Reading IAM about patents is like watching Fox 'news' coverage of all things Obama. It's just agenda disguised/dressed up as news. It's agenda presented in the form of 'news', and truly a great service to Battistelli when he needs to support some lies of his.

Watch the patent microcosm trying to resurrect software patents by trashing the Supreme Court [1, 2] in light of the above. It's like that pack of hyenas we wrote about a week ago. How far will the patent lawyers go in their attempt to save software patents?

"Is the Technology for Self-Driving Cars Patent-Eligible?"

"Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared."That's the headline of this new 'analysis' from the patent microcosm, writing about software patents that are disguised as 'device' (cars), prior art being the driver. The answer is probably no; no for the courts but yes for the USPTO, which continues to grant almost everything that comes in, irrespective of quality, scope, prior art, etc. The examiners cheat on their timesheets (defrauding taxpayers), so shoddy work seems to be the norm. Here we have an article about Goldman Sachs filing for software patents on electronic payments -- the one area where the invalidation rate of software patents is extremely high (around 90% of patents invalidated). Blockstream says it is pursuing patents in this area/domain, but it has not got any. Patent examiners oughtn't grant any, either (citing the CLS Bank case).

Elsewhere in the news we find this short docker report about a case in the court of choice of patent trolls, one of several in the Eastern District of Texas. It upholds software patents, as usual, probably because it's a farce of a court and it likes to brag about being friendly to the plaintiffs, especially trolls. Upon appeal, and if it reaches CAFC (expensive), the patent would probably be invalidated. This can be a rather traumatic experience to people who thought they had earned valid patents from the USPTO. Take the case of Keith Raniere; he used several software patents for frivolous litigation and got penalised very badly for it, as we noted earlier this month. Another new report about it says: "The plaintiff, Keith Raniere, filed the suit in February 2015 against AT&T and Microsoft, alleging the companies were using a number of his patents for intelligent switching systems for voice and data. In his lawsuit, Raniere claimed that AT&T used the software patents in its AT&T Connect service and Microsoft used the patents in its Lync 2010 products. [...] Following dismissal, both AT&T and Microsoft filed a motion to have their attorney fees covered by Raniere. AT&T requested that $935,300 be paid by the plaintiff and Microsoft presented $202,000 in costs and fees to be covered. Lynn requested both parties present proof of the costs and fees incurred from the case and denied Raniere any chance to correct or modify his lawsuit."

Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared. But therein lies the key point. The greater the mess, the more profit the patent microcosm makes. This isn't only a US problem but a European one too (see all the UPC lobbying).

"The greater the mess, the more profit the patent microcosm makes."We previously wrote about software patents in Australia (they sort of exist). This new post from the patent microcosm says: "The expansive approach of NRDC was subsequently relied upon by the Federal Court in 1991 to establish that computer programs were not excluded from patent eligibility under Australian law, a decision that effectively opened the gates for software patents in Australia."

As we wrote about this before, we can safely say that Australian software developers are upset by that. They never wanted such patents; it's the patent microcosm that did (while trying to convince developers that they too need software patents).

Recent Techrights' Posts

[Video] Dr. Richard Stallman at Technické Univerzitě v Liberci
New/via libre-liberec.cz
Security is Desirable, But Not When the Term Security is Misused to Imply Centralisation of "Trust" (Whose?)
'Security' is not an excuse for vendor lock-in
 
10 Days Ago Richard Stallman Gave a Long Interview in French (linuxfr.org)
English translation
Science, Not Fast Food/Junk Food
The commercial exploitation of users won't stop until users exercise full control over their software or - more broadly - their computing (including data)
The Free Software Foundation, Which Has Appointed a 43-Year-Old President, is Looking to Add Another Board Member (or Treasurer)
expect the FSF to add more people
Richard Stallman Confirms Next Week's Talk at Technical University of Munich, We Urge EPO Staff to Attend
That's probably late enough for EPO staff to attend after work
Gemini Links 18/10/2025: Notifications and Geminaut
Links for the day
Many Red Hat People Are Leaving, But It'll Be Framed Publicly as Leaving IBM
Similarly, IBM layoffs (or "RAs" as they're called) include Red Hat layoffs
Expect More Waves of Microsoft Layoffs This Month (at Least Two Rounds Confirmed Already)
From what we can gather, assuming the recent rumours about XBox are true, there will be at least 3 waves of Microsoft layoffs this month alone
Security Issues in Cisco and Jenkins Passed Off as "Linux" Problems
Fear, Uncertainty, Doubt (FUD) tactics
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 17, 2025
IRC logs for Friday, October 17, 2025
Slopwatch: LinuxSecurity, Linux Journal (Slashdot Media), UbuntuPIT, and Google News (Noise)
egregious plagiarism
Links 17/10/2025: Better Answers Sought After Air Crashes, "China Fans Patriotic Sentiment as Trade War With U.S. Heats Up"
Links for the day
Links 17/10/2025: Fentanylware (CheeTok) Causing Problems, Japanese Government Blasts Slop
Links for the day
The Linux Foundation Seems to Have Turned Linux.com Not Only Into a Spamfarm But Also LLM Slopfarm
it's polluting the Web, even important domains like Linux.com, with spam and LLM slop
Links 17/10/2025: UK’s Largest Breach Penalty and Windows TCO Examples
Links for the day
Go Watch Video About Librephone, Get Microsoft Ads
Very ethical company...
Campaign of Defamation Against the People Who Built NixOS (and Are Now Pushed Out From Their Own Project)
We've already grown familiar with - and resistant to - such tactics
Links 17/10/2025: Nestlé Crisis, Canada Post Versus 'Gig Economy' [sic] and Vista 11 Breaks Itself
Links for the day
Tux Machines Has Helped Separate Opinions/Analysis From News
In September 2023 we decided to split things apart and not repeat links in both sites
Tux Machines Has Improved Navigation of GNU/Linux and BSD News
Some more 'wiring' work
What a World Would Look Like If Everyone Used Free Software Only
Freedom is what matters, not "Open".
The Media Helps Microsoft, Amazon and Others (GAFAM and Beyond) Lie About Mass Layoffs Amid Valuation Bubble
The media, instead of saying that there's an "AI bubble" crashing the economy might instead choose the narrative of "jobs replaced by AI"
Bad Tempered? You Might Have Just Given Away That You're Losing the Argument
Brett Wilson LLP is fully aware that it is being investigated
Richard Stallman (RMS) is a Target of Defamation Campaigns Because of His Views on Software (But Politics Are the Excuse for Defaming Him)
Here in this site we try to refrain from politics, except in Daily Links
End of Vista 10 and Rise of GNU/Linux as Client Side Operating System
It seems certain GNU/Linux will grow in popularity over time
Taking Stock of a Week's Worth of EPO Leaks
We remain committed to exposing EPO corruption as long as it keeps happening
Mathieu Parreaux claims FINMA knew since day one
Reprinted with permission from Daniel Pocock
Calumny, Libel, Joerg Jaspert & debian-private untouchable cyberbullies
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 16, 2025
IRC logs for Thursday, October 16, 2025
Techrights Turns 19 in 3 Weeks
coverage of suppressed topics and protecting all sources/whistleblowers
International E-Waste Day Same Day as End of Vista 10
message from Akira Urushibata
The EPO's Central Staff Committee Presents Evidence That Staff Compensation Lowered While the Office Increases Income by Illegally Granting Invalid Patents
These people become millionaires by doing illegal things
Second or Third Wave of Microsoft Mass Layoffs in October 2025, This Time Portugal
Those are just the ones we know about, there may be several more
'Help Net Security' (helpnetsecurity.com) May Have Become a Slopfarm as Well
Zeljka Zorz, Editor-in-Chief at Help Net Security, was reported to us
Gemini Links 17/10/2025: Rant About Network Solutions, Strange Anomaly on Lagrange
Links for the day
EPO Staff Representation Lacks Social Dialogue With Relevant Management, Controversial and Sometimes Illegal Policies Implemented Without Necessary Input
"In this open letter, the CSC requests that the President submits an agenda item in the next available General Consultative Committee (GCC) meeting on setting up regular meetings between the CSC and the higher management of DG1."
Links 16/10/2025: Political Leftovers and Gemini Protocol Links
Links for the day
Lies Need to be Corrected
the Court never invited us
Slopwatch: Guardian Digital (linuxsecurity.com), Slashdot, Google News, and More
Maybe one day, once the bubble pops completely, Google News will just outright delist all slopfarms
Lufthansa Modern Slavery, Joerg Jaspert (ganneff) & Debian NSB Softwareentwicklung charade
Reprinted with permission from Daniel Pocock
Links 16/10/2025: US Starting More Trade Wars With China, CIA War on Venezuela
Links for the day
SUSE Blog is Still LLM Slop, Marketing Manager at SUSE Cannot Write
Would you buy from a company or seek support from a company that cannot even write (or fakes writing)?
Pretend You're Not Dead: Microsoft Spent Almost Two Decades Rebranding Things as "Cloud, Then "AI", Now "XBox" and "Quantum"
"AI" bubble pops, Microsoft harping about "quantum" already
IBM Allegedly Found New Tricks for Silent Layoffs: LPI, Then MIS (Not PIP)
Remember that "Red Hat layoffs" won't be reported after the bluewashing
Links 16/10/2025: Red Lines and Feeding of Microsoft Trolls
Links for the day
MIT as a Propaganda Mill of GAFAM, Paid by GAFAM
"the news" today
Links 16/10/2025: Lies Euphemised as ‘Dueling Versions of Reality’ and Microsoft "Open" "Hey Hi" Resorts to Porn as No Business Model Was Found
Links for the day
The Local Staff Committee Munich (Representation of the EPO's Staff) Explains When Cluster of Pregnancies May Result in Reduced Pay
"...even one week of part-time working is sufficient to reduce the salary you perceive during the entirety of your maternity leave."
Another Black Eye for 'Secure Boot', Microsoft Media Tries to Blame "Linux"
It enables Microsoft to remotely control computers, even computers that don't run Windows and never had any Microsoft software installed
Slopwatch: UbuntuPIT, linuxsecurity.com, and Various Slopfarms in Google News Attacking "Linux"
A new survey of the Web said that the majority of the Web is now slop (that's being said in the news this week)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 15, 2025
IRC logs for Wednesday, October 15, 2025
Links 16/10/2025: Increased Use of Social Control Media Surveillance in US, French Rage Over Pensions
Links for the day