Bonum Certa Men Certa

CAFC Historically a Facilitator of Software Patents and Other Abusive Means of Monopolisation

CAFC



Summary: The Court of Appeals for the Federal Circuit's judgments on software historically based on dogma and misunderstanding/misrepresentation/misinterpretation of facts, not adherence to rules, logic, or even public interest

NOW THAT Ballnux giant Samsung hoards more patents we should take a moment to remember that not all companies that are using GNU/Linux are actually friends. Even Microsoft claims to be embracing Linux in Android (through Nokia), but its intents are malicious, as we have explained numerous times before. Then there is Oracle, which joined Apple and Microsoft in hoarding Novell patents for malicious purposes. It also sued Google over Android and did some damage to Red Hat with Unbreakable, never mind all the damage Oracle did to Sun projects.



Deb Nicholson (FSF), writing for an established Web site, explained "How The Changing Legal Landscape Impacts Free And Open Source Software Development". She correctly pointed out the following: "A patent is a limited monopoly granted for certain amount of time (20 years in many places) in exchange for full disclosure. Based on the description in the patent application, a person who is knowledgeable in that field should be able to recreate the invention. Patents used to be reserved for physical processes, new devices and sometimes a limited monopoly on a particular business opportunity. The scope of patentability has expanded in the last few decades and can now include software, as well as business methods and even certain medical procedures. The intent of patents is purportedly to encourage inventors to make investments and create new inventions that might have otherwise been too financially risky to complete. As soon as a patent expires the idea can be freely implemented by anyone."

Patents, however, are no longer the only risk factor. Consider what the Court of Appeals for the Federal Circuit (CAFC) recently did. The FSF has just come out with this formal statement:

FSF statement on Court of Appeals ruling in Oracle v Google



[...]

The situation then is substantially similar to the situation today. The key difference is that some of Google's affirmative defenses to claim non-infringement have been eliminated by this new ruling. The FSF now sincerely hopes for the next best thing to Alsup's original ruling: that Google is successful in its fair use defense.

Notwithstanding our support of Google's fair use defense, the FSF urges caution to all prospective Android users. Even though the core of the Android system is free, every Android device sold comes pre-loaded with a variety of proprietary applications and proprietary hardware drivers. The FSF encourages users to support the development of Replicant, a distribution of Android that is 100% free software. The FSF also encourages users of any Android-based system to install F-Droid, a free replacement for the Google Play app that allows users to browse, install, and receive updates from a repository of free software Android apps. Replicant uses F-Droid as its default repository.


Generally speaking, CAFC has been a sham for many years as it was also responsible for making software patents legitimate in the United States, before this trend/precedent spread to other countries. In 2012 it was points out that the court stood in the way of stopping software patents and a week or so ago TechDirt cited this article, accusing the person who did this in the court. As TechDirt put it: "Tim Lee recently got to talk to Michel following a talk he gave, and what becomes clear is that Michel is completely out of touch with how much of a problem patents are in the tech world today. Lee knows this subject better than probably anyone else, and when he tried to dig in on key points, it was obvious that Michel's knowledge of what actually is happening in the industry is based on myths and imagination, rather than reality. For example, when Michel pointed out that he's "a facts and figures guy" rather than one who focuses on "anecdotes and assumptions," Lee quickly points to James Bessen and Michael Meurer's comprehensive book on why patents hurt the tech industry."

Lawyers defy logic.

Here is the latest relevant article about this, an article from TechDirt about CAFC:

For many years we've written about the serious problems with CAFC, the court of appeals for the federal circuit, which is better known as the appeals court where all patent cases go. CAFC was created in the early 1980s under the belief that a more "specialized" court could better handle the more complicated technical issues related to patents. But what really happened is that it basically built a club of patent-friendly judges, who spent nearly all of their time with patent lawyers, and thus took an increasingly patent-friendly view of the world. That one of the key original judges on CAFC was also a long-time well known patent lawyer who almost single-handedly wrote the 1952 Patent Act, seemed to set the tone that has remained throughout the court's existence.


It is not unusual for this disgraceful court to do this type of thing. TechDirt also gave this other new example one week ago:

A few weeks ago, the Supreme Court smacked down the Federal Circuit (CAFC) for its made up rules that made it almost impossible to enable victims of patent trolls to get the courts to order the trolls to pay legal fees. As the Supreme Court noted, CAFC seemed to set up arbitrary rules for no reasons at all. And this is important, because courts almost never award legal fees, and with the untimely death of patent reform, hopefully this small change will at least help in the meantime.


Notice the tend. CAFC is a not a legitimate court, it has become a pack of software patents (and more broadly patents) boosters. Its latest judgment, as before, should be appealed and brought to SCOTUS, but this is expensive and can take years.

Recent Techrights' Posts

10 Easy Steps to Follow for Digital Sovereignty in Nations That Distrust GAFAM et al
When "enough is enough"
Dr. Andy Farnell Explains Why Slop Companies Like Anthropic and Microsoft 'Open' 'AI' Basically Plunder and Rob People
This article was published last night at around 10
 
Salvadorans' Usage of GNU/Linux Measured at Record Levels
All-time high
Links 22/01/2026: Ubisoft Layoffs Disguised as "RTO", US "Congress Wants To Hand Your Parenting To GAFAM", Americans' Image Tarnished Among Canadians (Now Planning to "Repel US Invasion")
Links for the day
No, the Problem at IBM/Red Hat Isn't Diversity
Microsoft Lunduke also openly shows his admiration for Pedo Cheeto
Do Not Link to Linuxiac Anymore, Linuxiac Became a Slopfarm
now Linuxiac is slop
Richard Stallman (RMS) at Georgia Tech Tomorrow
After the talk we'll write a lot about "cancel culture" and online mobs fostered and emboldened in social control media
Software Patents by Any Other Name
There is no such thing as "AI" patents
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, January 21, 2026
IRC logs for Wednesday, January 21, 2026
The "Alicante Mafia" - Part VIII - Salary Cuts to Staff, 100,000 Euros to Managers Busted Using Cocaine (for Doing Absolutely Nothing, Just Pretending to be "Sick")
Today we look at slides from the union
Gemini Links 22/01/2026: Forest Monk, Aurora Observation, and Arduino Officially Launches the More Powerful Arduino UNO Q 4GB Single-Board Computer
Links for the day
Next Week is Close Enough for Wall Street Storytelling About 'Efficiency' by Layoffs for "AI"
This coming week GAFAM and others will tell some creative tales about how "AI" something something...
Google News Still a Feeder of Slop About "Linux", Which Became Rarer in 2026
Our main concern these days is what happened to Linuxiac. Bobby Borisov became a chatbots addict.
Links 21/01/2026: "Snap Settles Lawsuit on Social Media Addiction" and Attempts in the US to Revive Software Patents
Links for the day
Links 21/01/2026: Microsoft 'Open' 'Hey Hi' in More Trouble, US Has "Brown Shirts" Problem
Links for the day
Yesterday Afternoon The Register MS Published Paid Microsoft SPAM Disguised as an Article About "AI PCs"
The Register MS cannot help itself, can it? [...] Follow the money.
Microsoft's XBox is in Effect Dead Already, Now It's a Streaming and Advertising Platform
Expect many layoffs soon
Richard Stallman's Talk at Georgia Tech is Just 2 Days Away
We're still curious to see how malicious people (or trolls) in social control media will try to slant his talk as "bad"
EPO's Web Site Misused for Propaganda About Illegal Kangaroo Courts to Distract From EPO Scandals and Judicial Crisis in Europe
UPC is illegal and unconstitutional
The "Alicante Mafia" - Part VII - The Industrial Actions Began Yesterday, Here's Why
The "Alicante Mafia" might not last much longer
Gemini Links 21/01/2026: Edible Circuits and "Sayonara HTTP"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 20, 2026
IRC logs for Tuesday, January 20, 2026
IBM Hides Its Own Destruction (and Red Hat's)
It's like scenes out of '1984', which is what a now-famous advertisement from Apple compared IBM to
LLM Slop Not Dead Yet, Examples of Slop About "Linux"
We wish to see the totals down to zero
Links 20/01/2026: Cheeto Blackmails France Into 'Peace' While Looking to Annex EU, Mass Layoffs in Capgemini (Microsoft Reseller/Promoter) in France
Links for the day
Gemini Links 20/01/2026: Boxing and "Inbox Zero" Success
Links for the day
Windows and Slop Declining While Microsoft Silences Critics
Microsoft tries to suppress facts while faking 'demand' by imposing slop on everybody, everywhere
openai.com Traffic Said to Have Fallen 50% in the Past Three Months, Reports Say It Nearly Ran Out of Money to Borrow
After the slop frenzy all we'll have left is environmental destruction
IBM Kills OzLabs, Signalling An Attack on Free Software (a Sign for Red Hat)
ibiblio also appears to have died (or experiences critical issues)
Red Hat Vice President Leaving After Nearly Two Decades
IBM's culture of secrecy is not compatible with Free software
Links 20/01/2026: "ChatGPT Health" (Latest Distraction From Being Insolvent) Flops and Raises Concerns, "The U.S. Military Faces a Reckoning on Greenland"
Links for the day
Rudeness and Vulgarity Won't Stop Journalism About Free Software
we seem to be on the right path
Readers Pleased With Layout Changes
Two days ago we began improving clarity and accessibility in the site
IBM Plans for Layoffs Becoming Clearer With "Employee Reviews"
Of course this impacts Red Hat as well
IBM is Outsourcing Red Hat's Fedora to Slop to 'Save Money'
If IBM cared about quality rather than alleged "cost savings" (cutting corners), it would assign more IBM staff to Fedora, but instead the exact opposite happened, with the likes of Cotton and Miller removed from the project
European Patent Office (EPO) Industrial Actions Formally Start in Two Hours
As per the latest (revised) action plan, today workers will slow down their work and limit patent grants
Microsoft Under Fresh Investigation by the Italian Competition Authority
In 2025 we kept a running tally of 30,000+ Microsoft layoffs, so 40k this year would not be unthinkable
The "Alicante Mafia" - Part VI - More Strikes Planned at the EPO, Starting This Month
Yesterday we said that friends of Berenguer or inside Berenguer's circle may have left
Gemini Links 20/01/2026: New Tea, Using a Roku at a Hotel, and "Voltage-Based Power Management for Any Raspberry Pi"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 19, 2026
IRC logs for Monday, January 19, 2026