Bonum Certa Men Certa

Patents Roundup: RPX Grows, Netflix Issues a Patent Challenge, More on In Re Bilski

Netflix logo



Summary: Potpourri of software patent news from the past week and a half (focused on the United States)

HAVING taken a break for a while, a lot of patent news piled up. Here are the important bits of information from the United States:

Association of Press Release Distributors, LLC ("Association of Press Release Distributors, LLC fight against #swpat on publishing press releases on websites," emphasises Rui Seabra)

There are hundreds of press release distribution companies. Most exist with little to no interaction with each other in their industry. That ends today.


RPX Client Network Grows 150% in Six Months (see our Wiki page about RPX)

The new clients include global electronics companies NEC Corporation and Hitachi, Ltd.; infrastructure software provider Novell, Inc.; semiconductor manufacturer Nanya Technology Corporation; software developer Lawson Software, Inc.; wireless voice and data solutions provider Leap Wireless International Inc.; speech-recognition leader Nuance Communications, Inc.; and the world’s largest bookseller, Barnes & Noble, Inc.


Netflix Tries to Fix One Part of the Patent System

There's a very interesting case, Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys' fees. Here's their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed.

[...]

Netflix, in short, is asking the court to think about defendants who are attacked with very weak patents, and who then are more or less pragmatically forced to settle rather than fight, just because it's cheaper. If they can't get their attorneys' fees paid, what in the world makes them whole? Netflix says Media Queue is "a non-practicing entity," which is the polite way to call such entities. Setting an "objectively reckless" standard is a lower bar than proving frivolity or bad faith, and Netflix seems to be of the opinion that patent holders with weak patents are over-incentivized to bring questionable and very costly litigation, knowing they are unlikely to have to pay their victim's attorneys' fees, which can typically be in the millions.


NTP Keeps On Making The Case For Patent Reform As It Sues More Companies

Company suing eBay for $3.8B: eBay “unfairly stole the idea” of e-Payment systems

Another day, another major lawsuit. This time, a company called XPRT Ventures LLC has sued eBay for allegedly stealing “the idea and method of payment used in eBay’s PayPal and similar electronic payment systems” according to the press release put out by the XPRT’s lawyers Kelley Drye & Warren LLP.


Write Brothers, Inc. Celebrates a Decade at Comic-Con International 2010

Write Brothers currently holds three software patents. It holds two for the Dramatica€® story assistant, and one for the timeline-based presentation of text used in the StoryView™ outlining software. Streamline is the fourth technology patent Write Brothers has filed.


Microsoft will offer test versions of Dynamics CRM in September

Microsoft biggest competitor in this arena is Salesforce.com, which sells a Web-based software service for customer relationship management. The two companies are currently suing each other over software patents.


There is still a lot of new coverage about the Bilski case:

The silver lining in the Bilski decision isn't where most people believe ("Florian Müller" warning -- he is sometimes misguided in his targeting of issues)

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in re Bilski, a business method patent case. The patent application was rejected, but in a way that didn't draw any kind of line that would affect patents on software technology.

[...]

Let's better face this fact: there isn't a single killer argument against software patents that will convince a non-programmer if that same counterpart has also heard the pro-patent argument. If you can ever convince a majority of decision-makers, you'll have to do it indirectly. The direct approach has been tried by many people for many years -- to no avail (except, as I mentioned before, in a defensive situation).


Patent Litigation Weekly: Eben Moglen on Bilski, Software Patents, and Big Pharma

Moglen's position on the subject of software patents—that they should be banned—is, to say the least, outside the mainstream in legal circles. It has, however, garnered support among software developers and other techies, especially those who work in the world of open-source and free software.

Moglen's critique of the patent system extends well beyond the software issues he writes about, however. He suggests, for instance, that the 20-year monopoly granted by a patent is the product of a bygone era. And though he rejects the notion that he is "anti-patent," he says that the patent monopoly grant should be subject to a rigorous cost-benefit analysis, not simply handed out at the "monopoly window" that he believes the current Patent and Trademark Office represents.


Sanity From the 1st Post-Bilski Decision from BPAI: In Re Proudler

Look at this, will you? The first decision from the Board of Patents Appeals and Interferences post-Bilski to reference that US Supreme Court decision, in In Re Proudler [PDF], a ruling rejecting HP's application for a software patent, setting forth a rule stating, as I read it, as saying software is not patentable because it's an abstraction:
Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, "Abstract software code is an idea without physical embodiment." Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010).
This is not the last word, I'm sure, as HP can certainly try to reword. But don't you find this encouraging? I do. And that's why I wanted it in our permanent record of the Bilski case and its aftermath.


First Post-Bilski Patent Appeals Ruling Rejects Software Patent (Bilski precedence is already killing patents)

Well, well, well. Following the rather ridiculously vague Bilski ruling, that doesn't actually say what the right test should be for whether or not business methods or software should be patentable, many people have been wondering what it really means. While some of the justices have hinted at the idea that most software really isn't patentable, that's not at all clear from the ruling. Instead, the ruling suggests that the courts come up with a new test, and then the Supreme Court will tell them whether or not that new test is okay. Many software patent system supporters have interpreted this to mean that software patents are perfectly okay. But perhaps they shouldn't go that far just yet.


Post-Bilski Decision

One of the first decisions post-Bilski has shot down an appeal of a rejected patent application by HP. The patent-examiner had rejected the patent on the grounds of prior art (It’s mostly AND applied to rules for passing data…) but the appeal-board rejected the claims on the grounds of non-patentability


From the Editors: The Supreme Court’s road not taken

Bilski patent ruling will increase costs of doing business, says expert

United States: The Supreme Court Rules That The Process in Bilski is Not Patentable, But Refuses to Foreclose The Patentability of Business Methods

Bilski, Business Method Patents and the Uncertainty Principle

Bilski: One Step Forward... Two Steps Back

Inventors Given Hope on Patents for Business Methods

Software, pharmaceutical, and business method patents survive

A Close Call for Silicon Valley

Death Knell For Software Patents

United States: The Long-Awaited Bilski (In) Decision

[Ben Klemens on] Bilski and software patents

Should software be patentable?

It seems to me that the concept of certain generic sorts of software patents could well be made redundant thanks to the growth of open source, while remaining for specialist applications that have a technical purpose.


Patent Office Says No to Supreme Court and Software Patents

Startups and University Research: Too Much Emphasis on Patents?

When the Supreme Court ruled last month on the Bilksi case, denying Bilski's patent claim that Bilksi's patent but not making any real statements on the overall patentability of business methods or software, several opponents of software patents, including VCs Jason Mendelson and Brad Feld expressed their disappointment.

[...]

The study surveyed over 11,000 professors, and of the 1948 who responded who had started businesses, only 682 - about a third - had established them to exploit the patents obtained via the university intellectual-property systems. The remaining 1266 respondents had started businesses based on non-patentable knowledge.


Supreme Court On Patenting

Software patent advocates are praising the said decision of the Supreme Court like Tom Syndor saying that the Supreme Court was sensible in rejecting the said idea. A new layer and era of patent decade will help in requiring patent applicants to present plaintiffs to prove that their ideas are not abstract.


Paul Kedrosky's article "Software Patents Need to Be Abolished" has spread further (also published in other places with Brad Feld, who is a critic of software patents [1, 2, 3]).

Recent Techrights' Posts

The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
 
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol