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 in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

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. Links 26/1/2021: Mozilla Firefox 85.0, Tails 4.15, Zentyal Server 7.0, GNOME 40 Alpha

    Links for the day



  2. Instead of Making Access to COVID-19 Solutions Easier Bill Gates Has Made It Harder (Patent Profits)

    Counterproductively — and at a great cost to human civilisation — Bill Gates has once again put profits and monopoly ahead of global goals such as collective health



  3. We Need More Documents Leaked to Know Intel (From the) Inside

    We invite more leaks from the belly of the beast "chipzilla", seeing that it is becoming a drone of Microsoft again, yearning for the "Wintel" days instead of moving on to a world dominated by GNU/Linux and Free/libre software



  4. Why GNU/Linux Users (and the Public at Large) Should Support Leaking/Whistleblowing Sites (Including Wikileaks)

    To demonstrate the value of "scientific journalism" (a term apparently coined by Wikileaks) we take a look at Red Hat's response to embarrassing leaks (demonstrating what a scam their certification and examination programmes really are)



  5. EPO President António Campinos is Still Not Listening, According to Internal EPO Documents

    Increasingly arrogant and unaccountable management of Europe's second-largest institution (EPO) has left staff disillusioned but still defiant; there's clearly unsuitable or unfit-for-purpose management at the EPO, self-selecting based on nepotism/loyalty so as to cover up abuses



  6. Why You Should Give Falkon (the Web Browser) a Chance on GNU/Linux, BSD, or Windows

    In this crazy new world where advertisers are the real customers and Web users ("audiences") have been reduced to mere products we need a browser that isn't controlled by a company; try Falkon



  7. Kluwer Patent Spin and Distortion of Facts (Regarding UPC and More)

    Kluwer Patent Blog disgraces the firm that puts its name on it; instead of sticking to facts they're distorting the facts and the sole/principal goal is to manipulate/mislead the public and public servants



  8. Links 26/1/2021: 4MLinux 35.1, GParted 1.2, Gnuastro 0.14

    Links for the day



  9. IRC Proceedings: Monday, January 25, 2021

    IRC logs for Monday, January 25, 2021



  10. It's Wrong to Assume Red Hat Competes With Microsoft

    The community ought to stop pretending that one monopoly seeks to replace another despite close partnerships (some would say "collusion") between the two



  11. EPO Staff Representation Complains That EPO Management Exploits Pandemic and 'House Arrests' to Overwork Staff, Lower Quality

    The EPO keeps breaking its promises to workers; not only are key employees seeing their net salary cut (inflation factored in) but pensioners too are being robbed and in the meantime the total time spent on work is increasing



  12. Fake News is Not a 'Wing' Thing

    The two-party corporate-led system (and media) would have us obsess/bicker about accuracy of news based on some binary/dual system of blind loyalty rather than underlying facts and priorities



  13. Links 25/1/2021: Huawei on GNU/Linux, NuTyX 20.12.1, Whisker Menu 2.5.3, Lutris 0.5.8.3, Linux 5.11 RC5

    Links for the day



  14. Fear, Uncertainty, and Doubt (FUD) in ZDNet is the Norm

    ZDNet continues to emit lots of garbage 'journalism', in effect Microsoft PR and what's known as "black PR" for Linux; just like Bleeping Computer, which ZDNet hired this writer from, there's no adherence to facts, just smears and innuendo



  15. Truth Tellers Aren't an Enemy of Free Software

    There's a perpetual attack on people who speak out against actors and corporations in positions of great power, however subtle and indirect those attacks may seem on the surface (they don't wish to be held accountable for defaming activists)



  16. The Linux Foundation, With Over 124 Million Dollars in Annual Revenue, is in Trouble Because of the Pandemic, So It's Trying to Reinvent Itself as Training and Certifications Outfit

    With mountains of cash and a Public Relations (PR) or marketing business model the so-called 'Linux' Foundation became reliant on travel, lodging, booths and speeches on sale; COVID-19 is a great risk to that business model



  17. IRC Proceedings: Sunday, January 24, 2021

    IRC logs for Sunday, January 24, 2021



  18. Our Move Further Away From the World Wide Web, the Browser Monopolies, HTTP, and HTML

    The World Wide Web (WWW) is going down a bad path and a clearly regressive direction; the solution isn't going 'retro' but exploring more sophisticated systems which are robust to censorship (localised or globalised) and downtime (related to censorship) while reducing surveillance by leveraging encryption at the endpoints



  19. Important Issues Not Entertained in the Community, Especially Critics of the Status Quo

    here's corporate infiltration inside communities (for oligarchy hunts volunteer, unpaid labour) and those who speak about that as a threat to our cause and objectives are painted as misguided outcasts who must be ignored



  20. Internet Origins of the Mob

    Reprinted with permission from Daniel Pocock



  21. When Proprietary Software Users Dictate the Freedom-Leaning Communities

    Fedora doesn't care about software freedom and its steward (or parent company) is sometimes imposing proprietary software on staff; they've quit caring



  22. In 2020 Onwards 'Open Source' is Just a Marketing Ploy of Monopolies, Unlike Free Software

    More people are nowadays seeing or witnessing 'Open Source' for what it truly is; the term has become a misleading marketing term of proprietary software firms looking to rebrand as "ethical" (e.g. by sharing some code with other proprietary software firms, over proprietary platforms such as GitHub)



  23. Microsoft: The Year After We Bought GitHub There Was a Significant Decline in Number of New Projects on GitHub

    Microsoft has just admitted that in 2019 GitHub saw a very significant decline in number of new projects (and users, which it is conveniently miscounting by adding 'phantom' ones) on the site. Just what we had heard before they confirmed it (and they foresaw this effect of the takeover, hence the lies about "loving" Linux).



  24. Social Control Media is a Passing Fad, We Should All Go Back to Blogging and Subscribing to RSS Feeds

    The whole "social control media" phenomenon has been oversold or promoted using lies; in reality, as a mountain of evidence serves to show, it's a way to manage society at a macro scale



  25. As Andrei Iancu Removes Himself From the Patent and Trademark Office All Eyes Are on Biden's Next Nomination

    Patent zealots and their front groups already lobby Joe Biden to put one of them in charge of the U.S. Patent and Trademark Office; we'll soon see if Joe Biden "means business" or simply means monopoly/large corporations (and their law firms/departments)



  26. Data Point: GNU/Linux Share in Desktops/Laptops Nearly Tripled in the Past Decade, Peaking This Past Month (All-Time High)

    Contrary to what some publishers try to tell us, GNU/Linux is still growing and mostly at the expense of Windows



  27. IRC Proceedings: Saturday, January 23, 2021

    IRC logs for Saturday, January 23, 2021



  28. Links 24/1/2021: Nouveau X.Org Driver Release and GhostBSD 21.01.20

    Links for the day



  29. InteLeaks – Part XXX: Harbor Research's Pseudo-scientific 'Research' for Intel, Bizarrely Suggesting a Microsoft Partnership for a Domain Largely Controlled or Dominated by Linux

    The full document that Intel paid for and in turn used to justify cracking down on Free software (obliterating Free software-based workflows inside Intel), instead outsourcing all sorts of things to proprietary software traps of Microsoft



  30. Chromium and Chrome Are Not Free Software But an Example of Microsoft-Fashioned Openwashing Tactics

    It's time to reject Google's Web monopoly (shared with other companies but still an oligopoly); removing its Web browser would be a good start


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