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

10.04.16

Radio Silence in the Quarters of Patent Lawyers as Court of Appeals for the Federal Circuit (CAFC) Likely Ends Software Patents

Posted in Site News at 5:22 pm by Dr. Roy Schestowitz

The CAFC‘s Haldane Robert Mayer has issued a detailed and abundantly clear ruling, but patent law firms are still ignoring it

Haldane Robert Mayer

Summary: The historic decision from Haldane Robert Mayer (above) is slowly starting to gain some traction in the media, but proponents of software patents pretend not to see it and hope that prospective clients (software patent applicants) won’t notice what’s happening

SOMETHING very big happened at the end of last week, but it is not being properly covered (if at all) by the patent microcosm. Today, IAM ‘magazine’ is pushing for software patents (cherry-picking cases to focus on the ones that are pro-software patents) behind a paywall [1, 2] — all this in spite of the fact that most of them are dead (more of them, more than ever before).

We didn’t expect IAM to stand out though. It was probably the first to cover the McRO outcome (pro-software patents), but regarding the above there’s radio silence. WIPR, by contrast, finally wrote about it under the headline “Software patents are deadweight loss to economy, says Federal Circuit” and it didn’t mince words:

Software patents impose a “deadweight loss on the nation’s economy”, according to the US Court of Appeals for the Federal Circuit.

This was the concurring opinion of Circuit Judge Haldane Mayer in the case of Intellectual Ventures v Symantec and Trend Micro, decided on September 30. He concurred with Circuit Judge Timothy Dyk.

Mayer added that software patents erect “often insurmountable barriers to innovation” and force “companies to expend exorbitant sums defending against meritless infringement suits”.

The ruling found that three patents asserted by licensing company Intellectual Ventures (IV) against anti-virus software business Symantec and IT security company Trend Micro were invalid.

US patent numbers 6,460,050; 6,073,142 and 5,987,610, which all cover anti-virus software, were held not to cover patent-eligible subject matter.

It is good that someone in MIP (Managing IP) covered it as well, albeit MIP called it “controversial” as if to antagonise software patents is something questionable. To quote:

In a controversial concurring opinion in a Federal Circuit decision finding claims of three Intellectual Ventures patents invalid, Judge Haldane Mayer argues: “It is well past time to return software to its historical dwelling place in the domain of copyright.”

This is what software developers have been arguing all along. There is nothing “controversial” about it. What likely “controversial” is a site like IAM openly promoting software patents and its editor in chief arguing with me online, insisting that being against software patents is the same as (or moral equivalent of) wanting layoffs. Whose layoffs? Definitely not software developers’. This is just a politician’s trick, trying to equate some policy with “creating” or “destroying” jobs (appeal to “families”).

How long before Watchtroll personally attacks this CAFC Judge (as usual)? And maybe Patent Docs also? Both have a tendency to go ad hominem when they dislike the outcome. Here is the patent microcosm shooting the messenger. It didn’t take long. This one dismisses the judge as “one senior judge with no business experience nor extensive technology background-baying at the moon” (there’s more here).

Some of the worst ad hominem attacks we have come across discredit the US Supreme Court, which, according to this new article from Patently-O, virtually if not practically refuses to refute (technically overturn) Alice:

Not Eligible: Supreme Court Denies All Pending Subject Matter Eligibility Petitions

The Supreme Court has greatly simplified the patent docket by denying certiorari in 10+ cases. Gone are GEA Process (IPR termination decision), Amphastar (scope of 271.e safe harbor) , Commil (appellate disregard of factual evidence), MacDermid (obvious combination), Jericho (Abstract Idea) , Trading Technologies (mandamus challenging CBM initiation), Tobinick (interference), Neev (arbitrator autonomy), Genetic Tech (eligibility), Essociate (eligibility), Dreissen, and Pactiv (ex parte reexamination procedure). Notably, all of the eligibility petitions have been denied.

“Meanwhile,” the above adds, “on October 11, the court will hear oral arguments in Samsung v. Apple.”

Yes, that’s about design patents, which are related to software patents but not quite the same. Here is patent the maximalism site MIP catching up with the latest of Apple litigation, saying that a “jury in the Eastern District of Texas has awarded VirnetX $302.4 million in a verdict against Apple for infringing four patents. This is the third time a federal jury has found Apple liable for infringing VirnetX’s patented technology.”

The VirnetX case was covered here thrice in the past week alone and it is still being covered quite a lot by media large and small all around the world (because it’s about “Apple”, which typically attracts/baits readers). Here is AOL’s coverage of it. This involves a court in Texas, i.e. the cesspool of all patent courts. They actually boast/gloat about their bias. It’s their marketing strategy.

Speaking of design patents and Apple, Vera Ranieri from the EFF published “Stupid Design Patent of the Month” (later crossposted in TechDirt) in which she wrote:

On October 11, 2016, the U.S. Supreme Court is scheduled to hear oral arguments in the long-running Apple-Samsung litigation. The issue is whether Apple, by virtue of having its designed patents infringed by Samsung, is entitled to all of Samsung’s profits made from the infringing phones (regardless of how much that design contributed to the value of the phone).

This case—in which EFF submitted an amicus brief arguing the award of Samsung’s total profit is improper—is important for many reasons. But one reason stands out: it is trivially easy to get a design patent on trivial designs and, unless the Supreme Court changes the law, that can lead to anything-but-trivial awards in court.

This month’s stupid patent, a design patent, shows just how broken the current system of design patents is. Design patents, unlike the utility patents we usually feature, consist only of a single claim followed by pictures. It is generally the pictures that inform the public as to what is claimed. Importantly, in a design patent only the features drawn in solid lines are claimed. Anything in dotted lines is generally not part of the claim.

If SCOTUS rules against Apple and in favour of Android/Linux/Samsung, this may spell the end of design patents too. Wait and watch how patent lawyers would squirm and deny everything if this was to occur. Is it not funny (or suspicious) that not a single patent law firm is ‘seeing’ (after several days) the decision where CAFC slams software patents? A lot of patent lawyers are liars, and in light of the latest silence they are more so. They refuse to inform people about decisions where software patents are trashed. It’s just not good for their business.

“Well done, Haldane Robert Mayer, for saying what a lot of us software developers have been arguing for well over a decade. Patents are not needed for software, which is a copyright domain (like prose).”Today we found the new article “Federal Circuit Finds Claims Implemented on General Purpose Cellphone Not Patentable”, but the patent microcosm is still stuck in the past, persistently pushing an old case like McRO [1, 2, 3] as if we’re in the middle of September. This so-called ‘analysis’ too got reposted (mentioned here before), provocatively asking (in the headline), “Is the Pendulum Finally Swinging Back to Center?”

No, it’s swinging in the side that’s software patents being verboten and thus worthless. Just don’t ask IAM or the patent microcosm as they’ll pretend not to know about it. Surely they saw the decision, but they probably just don’t know what to say in order to somehow save face, spin it etc. If all they can do is attack the judge (i.e. shoot the messenger), then they’d be better off keeping quiet.

Well done, Haldane Robert Mayer, for saying what a lot of us software developers have been arguing for well over a decade. Patents are not needed for software, which is a copyright domain (like prose).

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. PatentShield is Not the Solution and It Won't Protect Google/Android From Patent Trolls Like Microsoft's

    A new initiative called "PatentShield" is launched, but it's yet another one of those many initiatives (Peer-to-Patent and the likes of it, LOT Network, OIN, PAX etc.) that serve to distract from the real and much simpler solutions



  2. Patent Quality Crisis and Unprecedented Trouble at the European Patent Office (EPO) Negatively Affect Legitimate Companies in the US As Well

    The granting en masse of questionable patents by the EPO (patent maximalism) is becoming a liability and growing risk to companies which operate not only in Europe but also elsewhere



  3. Blog 'Takeovers' by Bristows and Then Censorship: Now This Firm Lies About the Unitary Patent (UPC) and Then Deletes Comments That Point Out the Errors

    Not only are Bristows employees grabbing the mic in various high-profile IP blogs for the purpose of UPC promotion (by distortion of facts); they also actively suppress critics of the UPC



  4. Links 25/4/2017: Kali Linux 2017.1 Released, NSA Back Doors in Windows Cause Chaos

    Links for the day



  5. Astoundingly, IP Kat Has Become a Leading Source of UPC and Battistelli Propaganda

    The pro-UPC outlets, which enjoy EPO budget (i.e. stakeholders' money), are becoming mere amplifiers of Benoît Battistelli and his right-hand UPC woman Margot Fröhlinger, irrespective of actual facts



  6. EPO Fiasco to be Discussed in German Local Authority (Bavarian Parliament) Some Time Today as the Institution Continues Its Avoidable Collapse

    Conflict between management and staff -- a result of truly destructive strategies and violations of the law by Benoît Battistelli -- continues to escalate and threatens to altogether dismantle the European Patent Office (EPO)



  7. In the US and Elsewhere, Qualcomm's Software Patents Are a Significant Tax Everyone Must Pay

    The state of the mobile market when companies such as Qualcomm, which don't really produce anything, take a large piece of the revenue pie



  8. In South Asia, Old Myths to Promote Patent Maximalism, Courtesy of the Patent Microcosm

    The latest example of software patents advocacy and patent 'parades' in India, as well as something from IPOS in Singapore



  9. Links 24/4/2017: Linux 4.11 RC8, MPV 0.25

    Links for the day



  10. Why Authorities in the Netherlands Need to Strip the EPO of Immunity and Investigate Fire Safety Violations

    How intimidation and crackdown on the staff representatives at the EPO may have led to lack of awareness (and action) about lack of compliance with fire safety standards



  11. Insensitivity at the EPO’s Management – Part IX: Testament to the Fear of an Autocratic Regime

    A return to the crucial observation and a reminder of the fact that at the EPO it takes great courage to say the truth nowadays



  12. For the Fordham Echo Chamber (Patent Maximalism), Judges From the EPO Boards of Appeal Are Not Worth Entertaining

    In an event steered if not stuffed by patent radicals such as Bristows and Microsoft (abusive, serial litigators) there are no balanced panels or even reasonable discussions



  13. EPO Staff Representatives Fired Using “Disciplinary Committee That Was Improperly Composed” as Per ILO's Decision

    The Board of the Administrative Council at European Patent Organisation is being informed of the union-busting activities of Battistelli -- activities that are both illegal (as per national and international standards) and are detrimental to the Organisation



  14. Links 23/4/2017: End of arkOS, Collabora Office 5.3 Released

    Links for the day



  15. Intellectual Discovery and Microsoft Feed Patent Trolls Like Intellectual Ventures Which Then Strategically Attack Rivals

    Like a swarm of blood-sucking bats, patent trolls prey on affluent companies that derive their wealth from GNU/Linux and freedom-respecting software (Free/libre software)



  16. The European Patent Office Has Just Killed a Cat (or Skinned a 'Kat')

    The EPO’s attack on the media, including us, resulted in a stream of misinformation and puff pieces about the EPO and UPC, putting at risk not just European democracy but also corrupting the European press



  17. Yann Ménière Resorts to Buzzwords to Recklessly Promote Floods of Patents, Dooming the EPO Amid Decline in Patent Applications

    Battistelli's French Chief Economist is not much of an economist but a patent maximalist toeing the party line of Monsieur Battistelli (lots of easy grants and litigation galore, for UPC hopefuls)



  18. Even Patent Bullies Like Microsoft and Facebook Find the Patent Trial and Appeal Board (PTAB) Useful

    Not just companies accused of patent infringement need the PTAB but also frequent accusers with deep pockets need the PTAB, based on some new figures and new developments



  19. Links 21/4/2017: Qt Creator 4.2.2, ROSA Desktop Fresh R9

    Links for the day



  20. At the EPO, Seeding of Puff Piece in the Press/Academia Sometimes Transparent Enough to View

    The EPO‘s PR team likes to 'spam' journalists and others (for PR) and sometimes does this publicly, as the tweets below show — a desperate recruitment and reputation laundering drive



  21. Affordable and Sophisticated Mobile Devices Are Kept Away by Patent Trolls and Aggressors That Tax Everything

    The war against commoditisation of mobile computing has turned a potentially thriving market with fast innovation rates into a war zone full of patent trolls (sometimes suing at the behest of large companies that hand them patents for this purpose)



  22. In Spite of Lobbying and Endless Attempts by the Patent Microcosm, US Supreme Court Won't Consider Any Software Patent Cases Anymore (in the Foreseeable Future)

    Lobbyists of software patents, i.e. proponents of endless litigation and patent trolls, are attempting to convince the US Supreme Court (SCOTUS) to have another look at abstract patents and reconsider its position on cases like Alice Corp. v CLS Bank International



  23. Expect Team UPC to Remain in Deep Denial About the Unitary Patent/Unified Court (UPC) Having No Prospects

    The prevailing denial that the UPC is effectively dead, courtesy of sites and blogs whose writers stood to profit from the UPC



  24. EPO in 2017: Erroneously Grant a Lot of Patents in Bulk or Get Sacked

    Quality of patent examination is being abandoned at the EPO and those who disobey or refuse to play along are being fired (or asked to resign to avoid forced resignations which would stain their record)



  25. Links 21/4/2017: System76 Entering Phase Three, KDE Applications 17.04, Elive 2.9.0 Beta

    Links for the day



  26. Bristows-Run IP Kat Continues to Spread Lies to Promote the Unitary Patent (UPC) and Advance the EPO Management's Agenda

    An eclectic response to some of the misleading if not villainous responses to the UPC's death knell in the UK, as well as other noteworthy observations about think tanks and misinformation whose purpose is to warp the patent system so that it serves law firms, for the most part at the expense of science and technology



  27. Links 20/4/2017: Tor Browser 6.5.2, PacketFence 7.0, New Firefox and Chrome

    Links for the day



  28. Patents on Business Methods and Software Are Collapsing, But the Patent Microcosm is Working Hard to Change That

    The never-ending battle over patent law, where those who are in the business of patents push for endless patenting, is still ongoing and resistance/opposition is needed from those who actually produce things (other than litigation) or else they will be perpetually taxed by parasites



  29. IAM, the Patent Trolls' Voice, is Trying to Deny There is a Growing Trolling Problem in Europe

    IAM Media (the EPO's and trolls' mouthpiece) continues a rather disturbing pattern of propaganda dressed up as "news", promoting the agenda of parasites who drain the economy by extortion of legitimate (producing) companies



  30. The Patent Microcosm Keeps Attacking Every Patent Office/System That is Doing the Right Thing

    Patent 'radicals' and 'extremists' -- those to whom patents are needed solely for the purpose of profit from bureaucracy -- fight hard against patent quality and in the process they harm everyone, including individual customers


CoPilotCo

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

CoPilotCo

Recent Posts