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

02.24.18

Automated Tracking Solutions, Aatrix and Berkheimer Don’t Change Anything; They’re Exploited by Patent Extremists to Pressure/Mislead/Insult Judges

Posted in America, Courtroom, Patents at 5:38 am by Dr. Roy Schestowitz

Berkheimer and Aatrix are ‘old’ and the US patent microcosm has become a lot like the Trump administration, habitually insulting judges (even racially, however subtle that may seem)

Judge Reyna
Loss of civility (the Internet never ‘forgets’). The patent microcosm also insults judges (the above has been removed since), perpetuating the long-running insult/innuendo that judges who invalidate patents don’t care about facts or are "impotent" (in the case above, there’s also a racial slant). At the same time, judges that are actually caught engaging in serious misconduct (and call other judges “death squads”) are defended by them because of their pro-trolls, pro-software patents stance. At the patent microcosm’s spheres, bias is revealing. They want more and more patents and they vehemently hate quality control for patents. They even call rejections and invalidations “kills” and call judges that they don’t like a “cabal that rubberstamps these rejections” (are examiners a "cabal that rubberstamps low-quality applications"?); Only yesterday one of them called judges the “death squad” CRAWFORD, MOHANTY, BAYAT,” in effect comparing patent judges to executioners, which is not fair and far from respectful.

Summary: The intentional lies, in addition to insults directed at judges who push back against patent maximalism, represent a new low for the US patent ‘industry’; like a pack of wild hyenas they just gang up against those who do the rational thing and what makes economic sense for their country

THE US patent system is no longer open to software patents. No matter how many of them the USPTO will allow to slip through, PTAB and district/federal courts will almost always say “no”. In our next post we’ll talk about the consequences of this.

We are very disturbed to see patent law firms succumbing to the tactics of Team UPC. Truth no longer matters to them, so they just lie whenever that suits their financial agenda. They hope that by misleading potential/prospective clients they can make a quick buck. US patent law firms try to ‘sell’ services around software patents (applications, urging clients to sue with weak patents and so on), whereas Team UPC offers consultation around/about a system which will never exist.

If those who are reading this at the moment are patent lawyers/attorneys, we suggest you watch out because you unwittingly cause a legitimacy crisis for your whole profession. By going overboard, as many of you do, you inevitably cause clients to distrust if not shun you. Be honest. Be helpful. Don’t be so greedy and self-serving. Truth should be paramount, not short-term profits.

This legitimacy crisis would be further exacerbated by a pattern of judge-bashing. It makes sense for friends of the judge-bashing Watchtroll to not only bash judges for their rulings but also for their heritage. Just like ‘their’ President Donald Trump who called/labeled a US-born judge “Mexican” after he had ruled against him. A few days ago Dennis Crouch apologised for saying something potentially racist about judge Reyna. It’s no secret that judge Reyna received some publicity recently because of a major case — one whose outcome isn’t quite as major.

Joseph Robinson and Robert Schaffer wrote about this at Watchtoll and so did many others (we responded to them in our posts about Aatrix [1, 2]).

Long story short, patent law firms want us to believe that everything has just changed. Here’s Watchtoll writing about it (4 days ago) and IAM cross-posting its nonsense about Aatrix a few days after Richard Lloyd had delivered his usual propaganda. Sites like Patently-O, Watchtroll and IAM are the most notorious cornerstones of the patent extremists’ echo chamber. They seem incapable/unable to objectively report on cases as objective reporting might upset/alienate subscribers/regulars.

Here we have Patently-O‘s Dennis Crouch repeating the myth that Alice is now “in a somewhat confused state.” It’s a lie. Cherry-picking and distortion is all that boils down to. To quote: “Following the Federal Circuit’s decisions in Berkheimer, AATRIX, and ATS, the role of evidence and factual conclusions in the eligibility analysis is in a somewhat confused state. That setup makes Cleveland Clinic’s recent petition for writ of certiorari quite timely.”

Actually, it’s not confused at all. Aatrix was also boosted by Charles Bieneman, whose less-than-a-year-old blog said the following (also about Berkheimer, not just Aatrix):

In vacating a motion to dismiss because it disagreed with a district court’s finding that patent claims were “invalid as directed to ineligible subject matter under 35 USC § 101,” a Federal Circuit panel has made explicit a debate about whether patent-eligibility is a question of law or requires factual determinations. Aatrix Software, Inc. v. Green Shades Software, Inc., No. 2017-1452 (Fed. Cir. Feb. 14, 2018) (precedential). Judge Moore, joined by Judge Taranto, wrote the majority opinion. Judge Reyna concurred in part and dissented in part. As noted in the PatentlyO blog, the outcome of this debate, raised in Judge Moore’s recent opinion in Berkheimer v. HP, Inc., has important ramifications for litigants seeking to resolve patent disputes at the pleading stage. But more than that, what if patent examiners were required to make explicit factual findings in order for a patent-eligibility rejection to be sustained?

Berkheimer was covered here before, e.g. in [1, 2, 3]. It did not mean what the patent microcosm wants us to think (we did look at the original decision). Here we have a patent maximalist saying that “Del[aware] Judge holds home audio patent invalid under Alice; Said Berkheimer did not apply: https://dlbjbjzgnk95t.cloudfront.net/1014000/1014596/04313897444.pdf …”

Yes, because it barely matters at all. But law firms will carry on mentioning it for weeks if not months.

Dechert LLP’s Robert D. Rhoad said (on Aatrix Software, Inc. v Green Shades Software, Inc. and Berkheimer v HP Inc.) that it’s a “blockbuster”. It’s not. The patent industry likes (quite frankly as usual) to turn something minor into what they call a “blockbuster”; a reminder that lawyers are more like liars much of the time?

This was not a “blockbuster” and it wasn’t even a Supreme Court decision. This characterisation is therefore patently false. This is typical spin from the echo chamber. We wrote half a dozen rebuttals already, but that won’t matter. Rhoad paid to push his nonsense into several sites [1, 2] that are being read primarily by lawyers.

So did Michael Dorfman from Katten Muchin Rosenman LLP, who perpetuates a myth in the National Law Review. His final words are: “Taken together, these decisions indicate that the Federal Circuit is now more inclined to take a closer look at Section 101 decisions that are based on less than a full trial record.”

But that has not really happened since. As even gross patent maximalists put it, “PTAB continues to thumb nose at CAFC regarding requirement for fact finding in 101 rejections…”

Not only PTAB but also CAFC itself. As noted a short time ago by Patently-O, Judges Moore and Stoll already pour cold water on these patent maximalists who were Berkheimer and Aatrix fantasists, thinking software patents would somehow be spared. To quote Patently-O (whose bias is in favour of the maximalists):

The recent non-precedential opinion of Automated Tracking Solutions v. Coca Cola provides something of a backstop to AATRIX and Berkheimer. The ATS panel includes Judges Moore and Stoll – the two leading judges pushing for more formality in considering factual conclusions underlying an eligibility decision. In ATS, however, the panel affirmed a district court judgment on the pleadings that the asserted patent lacks eligibility. The panel restated its prior conclusions that “patent eligibility under § 101 is a question of law that may contain underlying issues of fact.” However, in this case the court found no material facts in dispute.

Bottom line is, whenever someone brings up Berkheimer and Aatrix (which will certainly happen for quite some time to come) be sure to bring up the broader picture. We already live in this post-climatic period, wherein Berkheimer and Aatrix are old news and barely worth entertaining as references in a court case.

Another important point is, don’t let patent radicals get away with racism (even if subtle and thus deniable). If they found some serious misconduct, such as the judge being married to a client of the plaintiff/defendant, then fine, point it out. But insulting the intelligence of judges (or their race) because you do not agree with them is a new low; we gave some examples of that in recent years (insinuating judges had dementia, in essence passing medical judgment on people whom you never examined, let alone met in person).

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. Indifference or Even Hostility Towards Patent Quality Results in Grave Injustice

    The patent extravaganza in Europe harms small businesses the most (they complain about it), but administrative staff at patent offices only cares about the views of prolific applicants rather than the interests of citizens in respective countries



  2. Links 18/6/2019: CentOS 8 Coming Soon, DragonFly BSD 5.6 Released

    Links for the day



  3. 'AI Taskforce' is Actually a Taskforce for Software Patents

    The mainstream media has been calling just about everything "HEY HI!" (AI), but what it typically refers to is a family of old algorithms being applied in possibly new areas; patent maximalists in eastern Asia and the West hope that this mainstream media's obsession can be leveraged to justify new kinds of patents on code



  4. Patent Maximalism is Dead in the United States

    Last-ditch efforts, or a desperate final attempt to water down 35 U.S.C. § 101, isn't succeeding; stacked panels are seen for what they really are and 35 U.S.C. § 101 isn't expected to change



  5. Links 18/6/2019: Linux 5.2 RC5 and OpenMandriva Lx 4

    Links for the day



  6. Weaponising Russophobia Against One's Critics

    Response to smears and various whispering campaigns whose sole purpose is to deplete the support base for particular causes and people; these sorts of things have gotten out of control in recent years



  7. When the EPO is Run by Politicians It's Expected to Be Aggressive and Corrupt Like Purely Political Establishments

    António 'Photo Op' Campinos will have marked his one-year anniversary in July; he has failed to demonstrate morality, respect for the law, understanding of the sciences, leadership by example and even the most basic honesty (he lies a lot)



  8. Links 16/6/2019: Tmax OS and New Features for KDE.org

    Links for the day



  9. Stuffed/Stacked Panels Sent Back Packing After One-Sided Patent Hearings That Will Convince Nobody, Just Preach to the Choir

    Almost a week ago the 'world tour' of patent lobbyists in US Senate finally ended; it was an utterly ridiculous case study in panel stacking and bribery (attempts to buy laws)



  10. 2019 H1: American Software Patents Are as Worthless as They Were Last Year and Still Susceptible to Invalidation

    With a fortnight left before the second half of the year it seems evident that software patents aren't coming back; the courts have not changed their position at all



  11. As European Patent Office Management Covers up Collapse in Patent Quality Don't Expect UPC to Ever Kick Off

    It would be madness to allow EPO-granted patents to become 'unitary' (bypassing sovereignty of nations that actually still value patent quality); it seems clear that rogue EPO management has, in effect, not only doomed UPC ambitions but also European Patents (or their perceived legitimacy, presumption of validity)



  12. António Campinos -- Unlike His Father -- Engages in Imperialism (Using Invalid Patents)

    Despite some similarities to his father (not positive similarities), António Campinos is actively engaged in imperialistic agenda that defies even European law; the EPO not only illegally grants patents but also urges other patent offices to do the same



  13. António Campinos Takes EPO Waste and Corruption to Unprecedented Levels and Scale

    The “B” word (billions) is thrown around at Europe’s second-largest institution because a mischievous former EUIPO chief (not Archambeau) is ‘partying’ with about half of the EPO’s all-time savings, which are supposed to be reserved for pensions and other vital programmes, not presidential palaces and gambling



  14. Links 15/6/2019: Astra Linux in Russia, FreeBSD 11.3 RC

    Links for the day



  15. Code of Conduct Explained: Partial Transcript - August 10th, 2018 - Episode 80, The Truth About Southeast Linuxfest

    "Ask Noah" and the debate on how a 'Code of Conduct' is forcibly imposed on events



  16. Links 14/6/2019: Xfce-Related Releases, PHP 7.4.0 Alpha

    Links for the day



  17. The EPO is a Patent Troll's Wet Dream

    The makers of software and games in Europe will have to spend a lot of money just keeping patent trolls off their backs — a fact that seems to never bother EPO management because it profits from it



  18. EPO Spreading Patent Extremists' Ideology to the Whole World, Now to South Korea

    The EPO’s footprint around the world's patent systems is an exceptionally dangerous one; The EPO amplifies the most zealous voices of the patents and litigation ‘industry’ while totally ignoring the views and interests of the European public, rendering the EPO an ‘agent of corporate occupation’



  19. Guest Post: Notes on Free Speech, and a Line in the Sand

    We received this anonymous letter and have published it as a follow-up to "Reader's Claim That Rules Similar to the Code of Conduct (CoC) Were 'Imposed' on LibrePlanet and the FSF"



  20. Links 13/6/2019: CERN Dumps Microsoft, GIMP 2.10.12 Released

    Links for the day



  21. Links 12/6/2019: Mesa 19.1.0, KDE neon 5.16, Endless OS 3.6.0 and BackBox Linux 6

    Links for the day



  22. Leaked Financial 'Study' Document Shows EPO Management and Mercer Engaging in an Elaborate “Hoax”

    How the European Patent Office (EPO) lies to its own staff to harm that staff; thankfully, the staff isn't easily fooled and this whole affair will merely obliterate any remnants of "benefit of the doubt" the President thus far enjoyed



  23. Measuring Patent Quality and Employer Quality in Europe

    Comparing the once-famous and respected EPO to today's joke of an office, which grants loads of bogus patents on just about anything including fruit and mathematics



  24. Granting More Fundamentally Wrong Patents Will Mean Reduced Certainty, Not Increased Certainty

    Law firms that are accustomed to making money from low-quality and abstract patents try to overcome barriers by bribing politicians; this will backfire because they show sheer disregard for the patent system's integrity and merely lower the legal certainty associated with granted (by greedy offices) patents



  25. Links 11/6/2019: Wine 4.10, Plasma 5.16

    Links for the day



  26. Chapter 10: Moving Forward -- Getting the Best Results From Open Source With Your Monopoly

    “the gradual shift in public consciousness from their branding towards our own, is the next best thing to owning them outright.”



  27. Chapter 9: Ownership Through Branding -- Change the Names, and Change the World

    The goal for those fighting against Open source, against the true openness (let's call it the yet unexploited opportunities) of Open source, has to be first to figuratively own the Linux brand, then literally own or destroy the brand, then to move the public awareness of the Linux brand to something like Azure, or whatever IBM is going to do with Red Hat.



  28. Links 10/6/2019: VLC 3.0.7, KDE Future Plans

    Links for the day



  29. Patent Quality Continues to Slip in Europe and We Know Who Will Profit From That (and Distract From It)

    The corporate media and large companies don't speak about it (like Red Hat did before entering a relationship with IBM), but Europe is being littered and saturated with a lot of bogus software patents -- abstract patents that European courts would almost certainly throw out; this utter failure of the media to do journalism gets exploited by the "big litigation" lobby and EPO management that's granting loads of invalid European Patents (whose invalidation goes underreported or unreported in the media)



  30. Corporate Front Groups Like OIN and the Linux Foundation Need to Combat Software Patents If They Really Care About Linux

    The absurdity of having groups that claim to defend Linux but in practice defend software patents, if not actively then passively (by refusing to comment on this matter)


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

Recent Posts