Bonum Certa Men Certa

Software Patents Continue Their Invalidation Process, But Patent Law Firms Try to Deny This in Order to Attract Misinformed (or Poorly-Informed) Clients

The patent microcosm is hijacking public debate for marketing/self promotional purposes

VOC
A widely-used technique for misspeaking and misrepresenting one's customers



Summary: A roundup of news about software patents and demonstration of the sheer bias in the media, which is mostly controlled or steered by the patent microcosm rather than actual inventors

THE STATUS QUO of patentability of software at the US patent office isn't too encouraging to those who have made a living by pursuing software patents, either as applicants or as patent agents.



"Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm)."What we're observing these days is a lot of cognitive dissonance and cherry-picking, especially among patent agents and lobbyists of companies like Microsoft and IBM. They only see the 'wins' and refuse to see the 'losses'. Take for example the new article ("Federal Circuit Takes A Common Law Approach to “Abstract Idea” Determinations in Alice Cases") from the patent microcosm. It focuses on the Amdocs case and makes a case for software patents. Another such article, this one regarding Oracle, explains "How to Overcome Rejections Based on the Alice Decision" ("Highlighting the claim limitations helped Oracle avoid the Alice Rejection," as the author put it in Twitter). They are still pursuing tricks and workarounds, seeing that PTAB and CAFC invalidate software patents faster than they can come up with new tricks and workarounds.

Here is a CAFC/PTAB case almost nobody in the patent microcosm wrote about (probably because of the outcome, which is rightly viewed as undesirable to this microcosm). WIPR did cover it and said:

The US Court of Appeals for the Federal Circuit has handed down a mixed patent ruling, in what is a successful outcome for Apple and Domino’s Pizza.

In a decision handed down yesterday, November 29, the court affirmed in part and reversed in part decisions by the Patent Trial and Appeal Board (PTAB) in three covered business method (CBM) reviews.

The decisions addressed the subject matter eligibility of certain claims of US patent numbers 6,384,850; 6,871,325; and 6,982,733.

Internet-based solutions provider Ameranth owns the patents, which disclose computer systems with hardware and software.


We wrote about Ameranth not even a single time in the recent past (not a few times but none, in spite of us writing extensively on the topic for over a decade) and looking it up suggests that it's known for almost nothing but litigation. It makes one wonder if the company is based just on litigation, i.e. flirting with "patent troll" status. We wrote about Ameranth last year and half a decade ago [1, 2, 3], always in relation to litigation.

Either way, some of its patents got invalided by PTAB (at long last) and as usual, as is so common among patent trolls, the patents are on software.

"The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm."In other news sites, CAFC/PTAB killing yet more software patents got a short mention (only two paragraphs!). To quote: "A federal appeals court on Tuesday further narrowed the patents that Ameranth Inc can assert in litigation against dozens of companies that use online ordering systems, invalidating the few claims that had survived review by the Patent Trial and Appeal Board (PTAB) last year."

The news regarding Ameranth, irrespective of the parasitic nature of the company, is bad news to the patent microcosm. Watch how they misuse language; terms like "attack" refer to reassessment of patents, PTAB is called "death squad", and district courts taking the side of the defendants is "Patent Invalidity Offense" (as if the defendant is magically becoming the offender).

"Three TiVo Patents Reinstated after NY Judge Found Alice Analysis Improperly Applied," one patent attorney wrote the other day, citing this decision [PDF].

"The language of the patent microcosm sure is misleading."They typically use words like "survive" (or "reinstated" in this case) when the offender/aggressor gets its way. Get it? Those who litigate and force others into courtrooms are merely "surviving". Not the defendant. If the defendant/victim wins, then it's said to be "attacking" the patent; it's a "Patent Invalidity Offense". The language of the patent microcosm sure is misleading. Roles or narratives are being inverted/reversed.

In other news from the docket, a US "court sua sponte vacated the prior district judge's summary judgment order invalidating defendant's advertising campaign analysis patents for lack of patentable subject matter because the asserted claims were not directed toward an abstract idea."

This does not necessarily mean it's the end of it. This just means a new decision will be issued. Given the possibility that it will be escalated upwards to CAFC, assume that these patents are likely invalid. If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it's a lot more strict than district courts).

"If even a district judge previously found/deemed these patents to be invalid, then CAFC will almost certainly say the same (it's a lot more strict than district courts).""Meanwhile," says a new article from American Lawyer (behind paywall), "the U.S. Supreme Court in 2014 tightened eligibility standards for software patents" (that's a factual statement).

Another news site went with the headline "Is a Software Patent Worth the Time and Effort?"

"Although patents for things other than software are legitimate and have a clear purpose," asserts the author, "software patents feel like a joke."

"Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?"So are such patents "worth the time and effort"? Well, not anymore. Don’t trust what patent lawyers (sellers) say about software patents, as they know they mislead us. Watch what they wrote for IAM 'magazine' in the latest issue. The title is "Unlocking revenue opportunities in software patent portfolios after Enfish" and it's behind a paywall. Why take only Enfish into account? What about the hundreds of other decisions, the large majority of which were against software patents?

The lunacy deepens when one looks over at Watchtroll. "We are only just now starting to come out of the software patent wilderness with the Federal Circuit recognizing that at least some software is patent eligible," this article says, but actually, more recently, CAFC pretty much invalided all software patents because of a decision from a prominent judge (whom Watchtroll personally attacked shortly thereafter).

It's no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk. Here is one of them, the EFF's "Stupid Patent Of The Month" for November. To quote:

Stupid Patent Of The Month: Movies From The Cloud



The Onion once ran a piece titled "I invented YouTube back in 2010." The joke, of course, is that YouTube launched in 2005. This month's Stupid Patent of the Month is just as ridiculous. US Patent No. 8,856,221, titled ‘System and method for storing broadcast content in a cloud-based computing environment,' claims a mundane process for delivering media content from remote servers. This might have been a somewhat fresh idea in, say the mid-1990s, but the application for this patent was filed in 2011.

The patent suggests using "at least one server" that should have "a memory that stores media content and a processor." The server then communicates with "a consumer device" that can send messages and receive content. Aside from these prosaic details, the patent makes only a half-hearted effort to distinguish its supposed invention from the massive array of cloud-based media services that already existed when it was filed. For example, the description suggests that existing services were inadequate because customers might pay a flat monthly fee yet make few downloads. The patent recommends tailoring customer cost to the content actually downloaded. But even if that was a new idea in 2011 (and it wasn't), routine pricing practices should not be patentable.


Don't expect the patent microcosm to ever accept what they are paid to be in denial over. Software patents are an abomination, they don't promote innovation, but they certainly bring more income to some patent law firms. Here is Peter Brewer obsessing about "patent agent" (middleman) over at IAM and another person's remark on evergreening, which is a great example of patent systems being misused to just infinitely guard monopolies, not promote innovation. Warren D. Woessner, a patent maximalist, obsesses over the new patent eligibility guidelines not because he wants scope to be narrowed but because he wants everything to be expanded. Also see this IAM "report" about CAFC. Why are these pieces dominating the news feeds and where are actual scientists in the news. They are being spoken about (by the patent microcosm) but not for. It's a real problem. The same thing happens in social media sites.

"It's no exaggeration to say that hundreds of thousands of software patents in the US (including already-expired ones) are bunk."Consider this tweet from a patent attorney ("What does #TRUMP mean for patent eligibility? "Intellectual Property is HUGE!! Alice is a DISASTER! Let's make patents great again!"").

Well, boosters would certainly wish for that. "Making patents great again" is also the title of one new article from IAM 'magazine', promoting the idea that resurrecting software patents is "great". What they mean by "great" is more and more of them, i.e. patents of lower quality, hence not great at all.

"Don't expect the patent microcosm to ever accept what they are paid to be in denial over."Talking to patent lawyers who profit from patents on software at developers' expense, Benjamin Henrion said that "software patents are a disaster for our profession."

Well, they are great to the profession that is taxing software development by dragging software developers into courtrooms and expensive settlements that would not at all be needed if software patents didn't exist.

No doubt the patent lawyers want software patents back and the employer of the above patent attorney also challenges Mayo right now. A few days ago it wrote that "[t]he Supreme Court’s current definition of a law of nature is scientifically incorrect. The analysis of this issue is quite complex, but I will attempt to summarize the issue. The Court’s definition in the Mayo case came down to: “the relation itself exists in principle apart from any human action. The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.”"

This same firm wrote in relation to the US patent system that "the GAO [Government Accounting Office] attempted to identify the factors that contributed to “low quality patents.”"

"So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?"As one might expect, the firm does not agree with the Government Accounting Office and tries to dismiss it. It says this "report was prepared at the request of the House Judiciary Committee, which asked the GAO to examine trends in patent litigation and identify opportunities to improve patent quality. To address the latter, the GAO attempted to identify the factors that contributed to “low quality patents.” The GAO’s analysis of these factors was based primarily on a lengthy survey of USPTO patent examiners on various factors that affected the quality of the applications they examined."

So the folks at GAO actually asked scientists, engineers, biologists etc. Not patent lawyers. How dare they?

At the end of the day we have a conflict between scientists and lawyers. There's no point denying it and perhaps it's time for scientists to better organise for a better patent system -- a system that puts science -- not the revenue of patent law firms -- first.

Recent Techrights' Posts

Social Control Media Relies on Advertisers, So It'll Always Be Hostile Towards Free Software
Sales, sales, sales
Fragmentation of Data
Life is too short to "hoard" data
Jamie Zawinski Complained About Wayland, Then Decided to Give It a Go, Now Complains Again About Wayland
Ask IBM (Red Hat) why it's worth throwing so much away just for Wayland fanaticism
Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
 
Links 21/07/2025: Indie Web and Toxic Politics
Links for the day
[Meme] Microsoft Lawyers Throwing Stones in Glass Houses
threatened me with bankruptcy
Google "AI Overview" is Not AI and Not Overview
do not be misled; what Google does isn't smart, it's just ripping off the sites it already crawled for as long as 27 years
Making the Case to Dump Microsoft and GAFAM for National and Digital Sovereignty
"Sovereignty is difficult"
The Tactics of the Opposition (Microsoft Lunduke): Associate With K00ks, Throw in Vaccines to Muddy the Water
Who stands to gain from this?
Europe's Second-Largest Institution (EPO) and Largest Patent Monopoly Office Needs More Transparency, Not Less Transparency
In the EPO, what good are elections when one candidate literally bribes all the voters?
How Not to Report News About Microsoft
This pattern of misreporting is so widespread that it's hard to believe it's not intentional
Computer Science is Under Attack, They Want Everyone to be a Consumer
If people can no longer acquire Computer Science education and real Computer Science experience, they will not know how to control their own digital destiny or emancipate the very same universities that now control the syllabus and instead of teaching Computer Science encourage the outsourcing of systems
The Best Tools Are the Simplest Tools
There's a hidden message here about the merits of sticking with X
Ofcom Online Safety Group Speaks of Protecting Women Online, Will Brett Wilson LLP Ever Listen?
They've essentially became like the Taliban's "burka police"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 20, 2025
IRC logs for Sunday, July 20, 2025
In Defence of "Spinning Rust"
Just because something is "old" (or older) doesn't mean it ought to become extinct
Using Free Software to Prepare Legal Documents
LibreOffice is openly complaining about OOXML as an obstacle
Tech and Technology Are Not the Same Anymore
"Are you into tech, Sir?"
Our Articles About SLAPPs Receive Recognition and Interest
This week we shall continue writing about the 3 lawsuits we filed
Are You Served?
For many people, advocacy of Free software and GPL enforcement are assumed to be happening
Conspiracy or grooming? Alex Jurado, Voice of Reason compared to Outreachy
Reprinted with permission from Daniel Pocock
Links 20/07/2025: Security Breaches and Former 'Open' 'AI' Engineer on Hype and Culture Issues
Links for the day
Links 20/07/2025: Fending Off BRICS and US Government Attacks Its Own Media (Like China and Russia)
Links for the day
Framed by social control media: Alex Belfield, Voice of Reason
Reprinted with permission from Daniel Pocock
Gemini Links 20/07/2025: Summertime and OCC25 Wrap-up
Links for the day
Slopwatch: Planet Ubuntu, LinuxSecurity, and More
former "Linux" blogs which basically became slopfarms
Links 20/07/2025: More GAFAM Lawsuits, Layoffs, and SLAPPs
Links for the day
Taking Stock of a Good and Productive Week
We shall now be taking a break, unpacking the new hard drive (8 TB), and making backups of everything
Nice Recovery (From Actual Fire) by PCLinuxOS, New Version of PCLinuxOS Released, Now Top of DistoWatch
PCLinuxOS is a community-driven distro
More Microsoft Shutdowns That Mostly Slipped Under the Radar
Remember what happened to books 'sold' by Microsoft?
Microsoft Lunduke Still Fighting Cancel Culture With... Cancel Culture
There will be no "winners" in such 'debates'
The History of Daily Links and Politics
"I support Wayland, but I also support abortion..."
Ageism in Tech
Your protocol is "old"...
Microsoft is at 0% "Market Share" in Most Areas
Depending on the taxonomy chosen, there may be dozens of categories other than desktops and laptops
"The moment MSFT stock fails to start tumbling, that’s the beginning of another corporate giant going under."
There are far more layoffs at Microsoft than at Intel, but you would not get this impression based on Wall Street media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 19, 2025
IRC logs for Saturday, July 19, 2025
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025