Bonum Certa Men Certa

Software Patents Are Dying in the US, But Patent Lawyers Refuse to Admit It

"It is difficult to get a man to understand something when his salary depends upon his not understanding it." ~Upton Sinclair

NARA
Poster Advertising a Patent Attorney
Record Group 179: Records of the War Production Board, 1918 - 1947



Summary: Patent lawyers continue to distort the reality of software patents' demise in the United States

The CAFC introduced software patents in the US, but a lot has changed since SCOTUS (the Supreme Court), which is above CAFC, ruled against a software patent and extrapolated from that to potentially invalidate a huge number of software patents. Patent lawyers are furious that even some portion of their business, software patents, is going down in flames and we have already shown them trying to deny it, curse, distort, or resort to blame shifting. Truth be damned! This post presents some more recent responses from them. These saturated the press because opposition to software patents has been inactive as of late.



"Patent lawyers are furious that even some portion of their business, software patents, is going down in flames and we have already shown them trying to deny it, curse, distort, or resort to blame shifting."A new article titled "Federal Circuit Puts Added Squeeze on Software Patents" shows the far-reaching impact of recent developments as "The courts set a new record for rejecting software patents in 2014", according to one opponent of software patents. It is not just about SCOTUS anymore because various lower courts, including CAFC, follow the same footsteps of the highest court. They have no choice is they want to obey the law, otherwise appeals will follow suit and be accepted on caselaw grounds.

Over at Managing Intellectual Property, a pro-patents site, is is claimed that "Business method patent issuance has plummeted since Alice". Another new article from patents-centric media provides a summary of post-Alice rulings on patentability of software. Rosenbaum IP, a law firm, wrote on December 2nd that "drafting narrow claims to ensure software is patent-eligible presents a challenge for patent practitioners. Patent practitioners are trained to draft claims with the broadest possible scope in order to ensnare as many infringers as possible."

To them, the problem is not software patents but those who are rejecting them. Here is another news article about the post-Alice world, noting: "The U.S. Supreme Court's recent decision announcing the framework for determining patent-eligible subject matter under 35 U.S.C. Section 101 has created a rabbit hole that will require a rethinking of intellectual-property protection strategies."

No, not really. Developers already have copyrights and that is more and enough (sometimes too much, e.g. copyrights on APIs in the US, which CAFC accepts, the EU rejects, and SCOTUS will hopefully bury soon). Here is a report about a recent case which shows that not all software patents are categorically dead, at least not yet. To quote the report: "For those following the law of patent eligibility in the United States, a December 5, 2014 precedential decision by the Court of Appeals for the Federal Circuit held that a patent on webpage-display technology is patent eligible under 35 U.S.C. ۤ 101. A slew of recent court decisions have gone the other way, leaving arguably similar patents invalid."

Over at patent lawyers' sites, especially in blogs that do not pretend to be journalism, a different picture is presented to readers. Within the echo chamber of patent lawyers truth is warped. Here is WatchTroll, whom we criticised before for extreme bias, glorifying software patents and those acquiring them with help from patent lawyers. He also calls patent trolling "Patent Monetization" and does some revisionism under the banner of "The History of Software Patents in the United States”. He mocks opposition to software patents and says: "The first software patent was granted by the United States Patent and Trademark Office (USPTO) on April 23, 1968 on an application filed on April 9, 1965, Martin A. Goetz, a pioneer in the development of the commercial software industry, was the inventor of the first software patent ever granted, U.S. Patent No. 3,380,029. Several years ago PBS Digital Studios profiled Goetz and his pursuit of the first software patent."

Martin Goetz is extremely biased in favour of software patents, so he is convenient for what is basically a defence of such patents. It is agenda disguised as 'history' (not just 'news') and it clearly became a series whose claims we reject. It's a selective account of history.

There are other pro-software patents 'news' sites and there is utterly, overly selective coverage there (any losses for software patents are ignored). We reviewed dozens of these over the past fortnight and it's very easy to spot to one who knows the facts and keeps abreast of many cases. WatchTroll's site acknowledges that the "Federal Circuit Finds Software Patent Claim Patent Eligible", but most of the time he just tries to paint everyone as a supporter of software patents (the opposite is true), thereby trying to pressure judges and mislead colleagues. Totally irresponsible!

In other lawyers' Web sites there is another type of bias that looks more professional. An article by Adam M. Breier from Finnegan, Henderson, Farabow, Garrett & Dunner, LLP shows us one a such example where patent lawyers are trying hard to promote software patents, sometimes by only covering what suits their agenda. They usually ignore the bad news (to them) and mislead readers by providing only coverage one half of the half-filled glass. At National Law Review there is an article titled "Section 101 and Software Patents: Abstract or Not?" (published here as well). Therein, an overview is presented by a biased author.

The Alice case is still in the headlines of legal sites (a month later) and words cannot express how disgusting the so-called "legal" press is. Patent lawyers are very much desperate to discredit court decisions which are hostile towards software patents these days. Articles continues to come which paint a deceiving picture, seeking to make it a self-fulfilling prophecy. Such sites are trying to shoot down the messenger and ignore the facts. Such is the case with coverage in patent lawyers' sites of Ultramercial, LLC v. Hulu, LLC (software patents lost). Here is Lowell D. Yoder from McDermott Will & Emery saying that Post-Alice Federal Circuit Finds Internet Advertising Method Not Patent Eligible" (true, but see the self-serving analysis) and others say in patent lawyers' sites that "Patent Eligibility [is] Becoming Threshold Question for Litigation". Not litigation is at stake, but the actual eligibility (including during assessment by patent examiners after issuance of new guidelines). A widely published article phrased is as a question, "Another software patent is ruled patent-ineligible - are business method and software patents at risk?" (also published here and here).

This is a rhetorical question. It hardly needs to be asked at all, except perhaps in patent lawyers' media. Also see "California district court helps clarify when software claims are patent eligible under Alice Corp. v. CLS Bank" and "Claims that CAFC's Ultramercial decision could prove a catastrophe for companies that license software patents" (or patent extortion like Microsoft's). Notice how it's framed. They make it sound like horrible news despite the fact that the vast majority of software professionals loathes software patents.

IAM, a crude patent propaganda site, is once again relaying Microsoft's talking points, which promote software patents (see "Software patent owners have nothing to fear from the CAFC's Ultramercial decision, says Microsoft's former chief patent counsel").

Also see the article "Protecting Intellectual Property Rights In Software After Alice Corp. v. CLS Bank" from the lawyers' press. It is not unusual for a legal firm to characterise monopoly on algorithm as "protecting". It is just the lingo of patent lawyers with euphemisms and double standards. Above is a loaded headline whose purpose it to appeal to emotion and make rulings against software patents seem like “catastrophe”.

The Ultramercial case shows that beyond copyrights there is no reason to have a government-sanctioned monopoly. That is not so hard to understand, is it?

The proponents of software patents and spinners against Ultramercial of course include WatchTroll, who wrote: "Ultramercial’s Federal Circuit luck has now run out. Gone from the original panel was Chief Judge Rader who retired and was replaced by Judge Mayer, which does not bode well for any patent owner."

This is the corrupt software patents extremist, Mr. Rader, whom we wrote about in [1, 2, 3]. How convenient a source to lean on!

Legal-centric sites go further by also promoting software patents in Australia (see the article "Australian full court sets new test for software patents - it's all about the substance") and in India, which still fights lobbyists who try to legalise software patents in this software giant nation (see "Disclosure Requirements For Software Patents").

Dr. Glyn Moody has an interesting new article about FRAND (usually about software patents, albeit not always) in hardware superpower China, citing a dispute with ZTE. To quote Moody:

How Should Standard-Essential Patents Be Licensed?



Patents are intellectual monopolies, designed to give the patent-holder control over an invention by excluding others from using it without permission. That's a problem when standards include patented elements. Anyone who wants to implement that standard must use the invention, which gives the patent-holder the ability, in theory, to demand and obtain any licensing deal it might propose. To limit that power, holders of these standard-essential patents are often required to agree to offer licensing terms on fair, reasonable and non-discriminatory (FRAND) terms.

[...]

However, when another Chinese company, ZTE, sought a license from Huawei, they were unable to agree on the terms, so Huawei brought an action for infringement against ZTE. According to ZTE, Huawei's attempt to obtain an injunction against it constituted an abuse of its dominant position, since ZTE was willing to negotiate a license. Here's the key part of the Advocate General's opinion.


Incidentally, there is a new report showing just illegitimate the USPTO is becoming. Now it treats patents, which are supposed to be all about publication, as secrets. To quote TechDirt: "The USPTO drops the dreaded b(5) exemption all over its internal emails, withholding stuff seemingly just to be withholding stuff, which is what the b(5) exemption does best. Supposedly this exemption is limited to memos or letters that would not be available to anyone but a "party in litigation with the [responding] agency," but in this case, seems to cover information otherwise in the public domain.

"Here's another redacted set of search results, covering variations like MARKY or MARKEY appearing on clothing. Hopefully, the two pages of black ink are covering up images rather than words. Otherwise, it would appear that the MARKY/MARKEY market is incredibly overcrowded."

How ridiculous is that? The US patent system sure seems like it's facing a crisis (of patent quality or scope) and it is going to have to cut down on software patents, business method patents, etc. in order to save its credibility. Without credibility it will cease to attract clients, some of whom sooner or later realise that acquiring a patent is not enough to successfully sue a rival in court.

Recent Techrights' Posts

Perens on a Stick
Remember what Novell did and how few (barely anyone) sided with Novell
Andrew Tanenbaum Gets an Award for His Work on MINIX
ACM one week ago
Twitter's Fall to Irrelevancy in Europe
Musk bought a dud
[Meme] 'Useless' Kids of EPO Examiners
malnourished?
Granting Loads of Monopolies in Europe (to Foreign Corporations of Epic Size and Far Too Much Power Inside Europe) is Vastly More Important Than Raising European Kids Properly?
"Efficiency" first? Whose? Corporations or families? No wonder so many young families are hesitant to have any kids these days; that's particularly true in east Asia and also in north America, not just Europe
Techrights in the Coming Decade: The Free Speech (Online) Angle
Free speech is a fundamental tenet of a free society
Edward Brocklesby (ejb) & Debian: Hacking expulsion cover-up in proximity to Oxford and GCHQ
Reprinted with permission from Daniel Pocock
Microsoft Windows in Nicaragua: From 98% to Less Than 25%
Operating System Market Share Nicaragua
 
EPO Issues in The Hague
a report dated 4 days ago about a meeting that took place 12 days ago
[Meme] Garbage in, Garbage Out (EPO Patent Quality)
"Get back to work"
When the Employer Makes You Too Sick to Go to Work (New EPO Document)
"registering when you are sick"
[Meme] Putin's Red Flags
Firefox ESR or Firefox USSR
The Corporate/Mainstream Media and Even Social Control Media is Distorting the Record About What Mozilla Actually Did (It Originally Surrendered to Vladimir Putin)
Mozilla being avoided for purely technical reasons (sites not being compatible with it) is one thing. Foolishly, Mozilla is giving people more political reasons to also shun Mozilla. This is suicide.
GNU/Linux Up Some More This Morning, Windows Down Sharply Even in Rich Countries
Microsoft is in trouble in the Muslim world
United Arab Emirates (UAE) Rising... Towards 5% for ChromeOS and GNU/Linux
the latest numbers show it growing from about 0.1% to around 2.4% for GNU/Linux, plus 2.01% for Chromebooks (ChromeOS), i.e. about 5% in total.
Links 24/06/2024: New Research, New Attacks on Justices Sceptical of Patent Maximalists, European Commission for Copyright Maximalists
Links for the day
[Meme] 12 Years a Fedora Volunteer
IBM gives me a 'free' Fedora badge as recognition
IBM Slavery: Not a New Problem
When IBM got rid of Ben Cotton it showed the world how much it valued Fedora
Why They Want to Abolish Master/Slave Terminology (Because This is What They're Turned Free Software Into)
It used to be about community; GAFAM turned that into exploitation and worse
Roy and Rianne's Righteously Royalty-free RSS Reader (R.R.R.R.R.R.) Version 0.2 is Released
They say summer "officially" started some days ago
Torvalds' Number Two Quit Linux a Decade Ago and Has Since Then Earned an Honorary Doctorate
Revisiting Fuzix and Alan Cox
GNU/Linux Reaches All-Time High in Tunisia
Based on statCounter
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 23, 2024
IRC logs for Sunday, June 23, 2024
You Know the Microsoft Products Really Suck When...
"Qualcomm and Microsoft go 'beyond the call of duty' to stop independent Copilot+ PC reviews"
IBM and "Regime Change"
Change of regime is not the same as freedom
Techrights in the Coming Decade: The Community Angle
Somebody needs to call them out on their BS
Techrights in the Coming Decade: The Software Angle
Gemini Protocol has just turned 5 - i.e. roughly the same age as our Git repositories
Techrights in the Coming Decade: The Patent Angle
Next month marks 10 years since we began covering EPO leaks
Wookey, Intrigeri, Cryptie & Debian pseudonyms beyond Edward Brocklesby
Reprinted with permission from Daniel Pocock
[Meme] Choice Versus Freedom
So When Do I Start Having Freedom? Freedom is choice between the GAFAMs
Digital Liberation of Society at Times of Armed Conflicts and Uncertainty
We have technical contributions, not just written output
Links 23/06/2024: More Microsoft Cancellations, Growing Repression Worldwide
Links for the day
Gemini Links 23/06/2024: The Magician and the Hacker, tmux Tips
Links for the day
Links 23/06/2024: Twitter/X Wants Your Money, Google Reports a Billion DMCA Takedowns in Four Months
Links for the day
Digital Restrictions (Like DRM) Don't Have Brands, We Need to Teach People to Hate the Underlying Restrictions, Not Companies That Typically Come and Go
Conceptually, the hens should fear humans, not the farmer who cages them
Going Above 4% Again
Maybe 4% (or above) by month's end?
[Meme] Debian's 'Cannon Fodder' Economics
Conflicts of interest don't matter
Conviction, jail for Hinduja family, Debian exploitation comparison
Reprinted with permission from Daniel Pocock
According to Microsoft, It's Not a Code of Conduct Violation to Troll Your Victims Whose Files You Are Purging
The group of vandals from Microsoft think it's "funny" (and for a "nominal fee") to troll Microsoft critics
Microsoft Inside Debian is Sabotaging Debian and Its Many Hundreds of Derivatives With SystemD (Microsoft/GitHub Slopware With Catastrophic Bugs is Hardly a New Problem)
What is the moral of the story about The Scorpion and the Frog?
Links 23/06/2024: Hey Hi (AI) Scrapers Gone Very Rogue, Software Patents Squashed at EPO
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 22, 2024
IRC logs for Saturday, June 22, 2024
Gemini Links 23/06/2024: LoRaWAN and Gemini Plugin for KOReade
Links for the day
Links 22/06/2024: Chat Control Vote Postponed, More Economic Perils
Links for the day
[Meme/Photography] Photos From the Tux Machines Parties
took nearly a fortnight
Uzbekistan: GNU/Linux Ascent
Uzbekistan is almost the same size as France
SLAPP as an Own Goal
We have better things to with our limited time
Independence From Monopolies
"They were ethnically GAFAM anyway..."
GNU/Linux at New Highs (Again) in Taiwan
latest numbers
Links 22/06/2024: More Layoffs and Health Scares
Links for the day
Rwanda: Windows Falls Below 30%
For the first time since 2020 Windows is measured below 30%
[Meme] IBM Lost the Case Over "Dinobabies" (and People Died)
IBM agreed to pay to keep the details (and embarrassing evidence) secret; people never forgot what IBM called its staff that wasn't young, this keeps coming up in forums
Exactly One Year Ago RHEL Became Proprietary Operating System
Oh, you want the source code of RHEL? You need to pay me money and promise not to share with anyone
Dr. John Campbell on Gates Foundation
Published two days ago
Melinda Gates Did Not Trust Bill Gates, So Why Should You?
She left him because of his ties to child sex trafficker Jeffrey Epstein
How Much IBM Really Cares About Software Freedom (Exactly One Year Ago IBM Turned RHEL Into Proprietary Software)
RHEL became proprietary software
Fedora Week of Diversity 2024 Was Powered by Proprietary Software
If instead of opening up to women and minorities we might open up to proprietary software, i.e. become less open
18 Countries in Europe Where Windows Fell Below 30% "Market Share"
Many people still use laptops with Windows, but they're outnumbered by mobile users on Android
[Meme] EPO Pensions in the UK
pensioners: looks like another EPO 'reform'
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 21, 2024
IRC logs for Friday, June 21, 2024
During Fedora Week of Diversity (FWD) 2024 IBM and Its Subsidiaries Dragged to Court Over Discrimination at the Corporate Level
IBM is a deplorable, racist company
Workers of the European Patent Office Take the Office to Court Over Pension
pensions still precarious
Gemini Links 22/06/2024: FreeBSD vs XFCE and Gemini Bookmarks Syncing Solution
Links for the day