02.19.18

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The Patent ‘Industry’ Likes to Mention Berkheimer and Aatrix to Give the Mere Impression of Section 101/Alice Weakness

Posted in America, Courtroom, Patents at 1:59 am by Dr. Roy Schestowitz

Summary: Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way

ALL SORTS of USPTO-granted software patents are facing extinction. We’ll soon write about PTAB, giving some examples of invalidations, but one need not look as far as PTAB.

Michael SteinMichael Stein, an IP Counsel from Seattle (makes one wonder if a former Microsoft executive or something else; his page does not disclose clients or past employers), isn’t too happy about the status quo. Days ago he wrote: “It’s a logic flaw in assessing patent eligibility. Take a computer readable medium, such as a hard disk. Claim the CRM and it would rightly be rejected for lack of novelty but not under 101. Add instructions for a SW process, it becomes ineligible under 101. Doesn’t make sense.”

“The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted.”The computer is irrelevant to it. Algorithms are algorithms and they’re abstract. The above clearly misframes what Section 101/Alice is about (by lumping that together with hardware). In the meantime, there’s also similar spin from other law firms. As we last noted yesterday, they habitually distort and misframe Berkheimer, making it about Section 101/Alice even though that’s now quite the case. Yesterday we also wrote about Aatrix, a newer case which is already being distorted similarly. The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted.

A few days ago Bejin Bieneman wrote:

Considering the patent-eligibility of claims directed to archiving digital assets, the Federal Circuit has affirmed a district court decision invalidating an independent claim under 35 USC § 101 and Alice, while vacating and remanding a judgment that certain dependent claims were patent-ineligible. Berkheimer v. HP, Inc., No. 2017-1437 (Fed. Cir. Feb 8, 2017) (precedential) (opinion by Judge Moore, joined by Judges Taranto and Stoll). Along the way, the court chastised the District Court for using independent claim 1 of US Patent No. 7,447,713 as representative, while ignoring the patent owner’s separate arguments concerning dependent claims 4-7.

They are partly correct in pointing out what many patent zealots intentionally omit; the Federal Circuit did not repudiate Section 101/Alice at all; au contraire. But some quote miners cherry-picked quotes from that long (almost 20 pages) decision to suit the bogus narrative of PTAB disregarding facts.

“How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal “ammo”?”Berkheimer was also mentioned yesterday by Watchtroll. The title was “Is there a Light at the End of the Alice Tunnel?” as if it’s darkness to have Alice. It’s another one of those Watchtroll rants about Alice (second from this author in the past week alone) and it starts by stating: “The Federal Circuit explains in Berkheimer and Aatrix that the Federal Rules of Civil Procedure apply to patent eligibility.”

Obviously. But what does not follow is the remainder of this dross about Alice being controversial, unclear, or whatever.

As we said yesterday, it’s reasonable to predict that in weeks if not months to come lawyers will just name-drop Berkheimer and Aatrix in an effort to vacate perfectly legitimate decisions. What both cases showed wasn’t an issue with Alice, which they didn’t even challenge or refute. How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal “ammo”?

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