Bonum Certa Men Certa

Relying on EPO, CAFC -- Originator of Software Patents in the US -- Tries to Bring Them Back Into Play in Microsoft Case

And the microcosm of patents lawyers helps CAFC by selective coverage and accompanying hype that is hardly justified

Omission bias Reference: Wikipedia



Summary: The highly biased Court of Appeals for the Federal Circuit (CAFC) rules in favour of a software patent, so the crowd of patent lawyers (or their sites) goes wild and makes it seem like an Earth-shattering development that suddenly makes software patents very eligible in spite of Alice/€§ 101

CONCERNS about the EPO's rogue management and the EPO scandals are globally justified as these matters impact not only Europe. And it's not just because the EPO is not a European body (it's international/globalist) but because it inspires moves in other countries/continents, where labour rights gradually get abolished/eroded and patents get expanded in terms of scope, number, injunctions, damages, and so on.



"New USPTO Patent-Eligibility Guidance Not So New," according to this pro-patents site. Lawyers' sites which comment on USPTO guidelines would rather have us believe nothing has changed. This one says that "this memorandum simply lays out the by now well-known two-part Alice/Mayo test, spells out explanations that examiners are supposed to give when making Section 101 rejections, and provides examiners with responses to arguments that applicants may make. Applicants may find this guidance useful in pressing examiners for better explanation of rejections based on allegedly unpatentable subject matter. However, I suspect applicants will continue to be frustrated by the seemingly subjective, and undeniably unpredictable, nature of many rejections under 35 U.S.C. €§ 101."

"The USPTO does not care what the Supreme Court says."Will this patent office stop issuing software patents at long last? We doubt it. The USPTO does not care what the Supreme Court says. It's pretty much the same at the EPO, where the EPC is repeatedly ignored (on multiple levels).

EPC rules are being ignored/crushed by Battistelli with his lousy leadership (while he makes up the EPO rules/guidelines with zero oversight) and in the mean time we learn that: "The CAFC in Enfish v Microsoft employed the EPO technical test to define what, if anything, was abstract."

Worth noting, as we have indicated before, is the gross deception (by omission) from lawyers' sites. When decisions are made against software patents in the US the lawyers' blogs and sites are mostly quiet; but they're all in hype and joy otherwise, amplifying the news. This is why the lawyers' sites were all over this case a few days ago [1, 2, 3, 4, 5, 6, 7, 8, 9], with headlines like "Federal Circuit Clearly Says Software Can Be Patentable" and summaries such as this: "A Federal Circuit panel (Judges Moore, Taranto, and Hughes) has unambiguously stated that some — one might even say much — software is patent-eligible, reversing findings of invalidity under 35 U.S.C. €§ 101 for two patents “directed to an innovative logical model for a computer database.” Enfish, LLC v. Microsoft Corp., No. 2015-1244 (Fed. Cir. May 12, 2016) (opinion by Judge Hughes). In addition to reversing a summary judgment of Section 101 invalidity, the court vacated a summary judgment of invalidity under 35 U.S.C. €§ 102, and left intact a summary judgment of non-infringement. But the reason why this case will be a big deal is the holding — and analysis — pertaining to the patent-eligibility of software inventions."

"Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents.""The EPO tech feature test is 40 years old," one person wrote. "Why didn't CAFC use it before and avoid all this jurisprudential bullshit?"

As Benjamin Henrion put it, "because the EPO test is garbage."

Another opponent of software patents asked, "US Court now using EU rules?"

A later question was, "so they just take rules from other Countries when they decide to?"

"The GAO Report has already cited the role of Software Patents in the problem," it was added, "FTC Report will probably say the same" (the patent maximalists slam it before it's even released).

"In her Dissent in Bilski," said one patent attorney, "J. Moore said that the abstract test would swallow circuit court decisions. It did. Hence, Enfish Today." Another tweet said: "Enfish v Microsoft et al.--Only 1 of 2 Fed Cir Decisions Holding Software Eligible under 101; Held Software Not Inherently Abstract"

"Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news."Then came the think tanks (the think tanks of patent maximalism), like one that supports not only patent trolls but also software patents. To quote: [1, 2] "Some much-needed sanity in #patent law: Fed Cir says today in Enfish v. Microsoft that #software NOT automatically "abstract" under 101 test [...] unfortunately, Alice left much to interpretation by courts & PTO, who took it as anti-software patent mandate" (still slamming the Supreme Court because, once again, CAFC is trying to promote software patents, which it made up or introduced in the first place).

Here is a press release about the case. Suffice to say, patent maximalists were celebrating, expounding, and emphasising the news. This is their time to deceive, mislead, and engage in shameless self-promotion/marketing. IAM wrote: "Since the Supreme Court handed down its decision in Alice, many in the patent market have been searching for a case that provides some greater clarity on the Justices’ thinking or, at the very least, doesn’t simply see the Court of Appeals for the Federal Circuit (CAFC) affirm a lower court ruling and invalidate the patent in question. Those cases have been few and far between but the market took some encouragement this week from the CAFC’s decision in Enfish LLC v Microsoft, when the majority ruling explicitly stated that Alice did not simply eliminate broad swathes of software from patent eligibility."

"So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded."Here is what Gene Quinn's site and IP Kat wrote. So many sites, almost all of which are run by patent lawyers and their batsmen, are celebrating and emphasising this case because they love software patents and conveniently ignore the cases where the opposite is concluded.

National Law Review went with the headline "CAFC Finds Software Patent Eligible Under 35 U.S.C. €§101" and Andrew Chung from Reuters said "Federal Circuit revives patent, expands software eligibility".

Software-related patents will survive challenges to their validity despite a U.S. Supreme Court precedent that has led to the widespread cancellation of patents, if they improve the way computers operate, a federal appeals court ruled on Thursday.

In a dispute involving Enfish LLC and Microsoft Corp, a three-judge panel of the U.S. Court of Appeals for the Federal Circuit revived two Enfish patents on an advanced database, agreeing with the company's Cooley attorneys that the technology improves the functioning of a computer and thus deserved to be patented.


As Microsoft lobbies so hard for software patents, losing this case is possibly good news to Microsoft. One might argue that they're winning by losing here. This case isn't about patent trolls but about patent scope and the former "patent reform is minimal," Benjamin Henrion reminds people, "real reform involves discussing patents for software."

"Why did it rely on the EPO? It seems totally improper a thing to do."Right now there's just one case that shows digression (moving in the opposite direction) as "patent courts are always biased." (especially true in the case of CAFC, which is full of well-documented corruption)

"In a rare win for a software patentee," Patently-O wrote, "the Federal Circuit has rejected a lower court ruling that Enfish’s “self-referential” database software and data-structure invention is ineligible under 35 U.S.C. €§ 101 as effectively an abstract idea."

Why did it rely on the EPO? It seems totally improper a thing to do.

In other cases -- not the type of cases that patent lawyers want the public to know about, €§ 101 kills patents because it's about an "electronic device to obtain clinical trial data that would otherwise be collected by pen-and-paper diary" (to quote the decision, not the Docket Report):

The court granted defendant's motion to dismiss because the asserted claims of plaintiff’s clinical drug trial patents encompassed unpatentable subject matter and found that the claims were directed toward an abstract idea.


Another €§ 101 article from the Docket Report says "Popularity of €§ 101 Motions Weighs Against Certification for Interlocutory Appeal". To quote: "The court denied defendant's motion to certify for interlocutory appeal an earlier order denying defendant's motion to dismiss for lack of patentable subject matter because, although there was a controlling question of law that would materially advance the litigation, the court exercised its discretion not to grant appeal given the popularity of 35 U.S.C. €§ 101 motions."

The bottom line is this: Most decisions which involve €§ 101 wind up eliminating software patents. But reading the patent lawyers-dominated media (or their own 'news' sites) one might give the opposite impression.

Recent Techrights' Posts

StatCounter Shows the Market Share of Vista 11 is Decreasing in Ukraine This Year
Microsoft abandoning Vista 10 users would be a victory for Vladimir Putin
The "Gold" Rule: Taking Money for Reputation Laundering and Openwashing Under the "Linux" Banner
Seller of expensive toilet paper, Jim Zemlin
LLM Slop Says Slop is "coming for white-collar jobs. Microsoft’s layoffs are just the start"
Look what the Web has become
Reporting Facts About Violence Against Women Deserves Awards, Not Frivolous Lawsuits and Threats
What is Microsoft's stance on women's safety?
Linux.com as Spamfarm of the Linux Foundation, Partner of the Gates Foundation
They no longer publish articles
Slopwatch: The Typical Slopfarms and the 'Brian Fagioli Dilemma'
To the Web and to society (exposed to the Web) LLMs are a net negative
 
Google Promotes Fake Articles (LLM Slop) Instead of Originals, Relaying Microsoft's Linux FUD Emanating From Microsoft LLMs
Shame on Google for participating in the slopfest
In Some Countries the Largest OEMs Already Dump Microsoft Windows
Windows at 18.9%, Android 60.2%
Microsoft Down From 100% to 10% in Myanmar/Burma
only about 4% of Web requests in Myanmar/Burma come from Vista 11, soon to be the only "supported" version of Windows
When Fedora Said It Was Looking to Integrate "AI" It Meant Promoting Microsoft's Proprietary Spyware and GPL-Violating Slop
When they say "AI" they mean Microsoft
It Used to be IBM, Now It's Microsoft (Why You Need to Fire Microsofters or CIOs Working for Microsoft)
Typically the only effective solution is to identity and remove Microsofters from one's project/organisation (before they can bring more Microsofters in)
IBM Closes Offices and Labs in the United States to Open New Ones in India
It's not layoffs per se; they're substituting/swapping veteran employees for lesser-paid ones
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 15, 2025
IRC logs for Tuesday, April 15, 2025
Gemini Links 16/04/2025: IndieWeb Carnival, Tinylog RFC, "Focus, the Web and Gemini"
Links for the day
Links 15/04/2025: Touchable Volumetric Display and Resistance to American Spying Firms
Links for the day
Links 15/04/2025: Some People Cannot Read and Re-discovering of 'Web 1.0'
Links for the day
Links 15/04/2025: China Admits Targetting Critical Infrastructure Using CALEA Back Doors, NASCAR Cracked by Windows Usage
Links for the day
Why We Support Carole Cadwalladr (Even If We Don't Agree With Everything She Said)
I first became aware of Cadwalladr's work a long time ago
Microsoft's Serial Strangler Chose to Attack Techrights With SLAPP When Over 400 Victims of Mohamed Al Fayed Complained About Media's Role in Enabling Him
There is a strong element of "free press" here
A Coalition or a Coup of Sexism
In the Free software community it's hard to avoid this issue
statCounter Sees GNU/Linux at New High of 6% in Bosnia and Herzegovina
GNU/Linux is measured at all-time high
To Celebrate Git Turning 20 Linus Torvalds is 'Selling Out' to Microsoft and Proprietary Software Which Attacks Git (E.E.E.)
He makes it seem like he's endorsing his attackers
Gemini Protocol Milestone (3,000 Active Capsules)
and a total of nearly 4,500
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, April 14, 2025
IRC logs for Monday, April 14, 2025
Gemini Links 14/04/2025: Silver Pigs and more Foundation, Disliking Computers
Links for the day
Hundreds of Microsoft Layoffs (Net Headcount Decrease) in the United Kingdom
headcount decreased
Links 14/04/2025: Russian Attack on Sumy Shows No Intention of Peace, Virgin Australia Admits Overcharging People
Links for the day
The Dilemma of Web Browsers Lying About What They Are (in Order to Bypass Discriminatory Gateways Like Clownflare) Worsens Due to LLM Slop
LLM crawlers/scrapers have made sites more restrictive and hostile towards browsers that are potent but not "famous"
What Really Matters to Companies is Net Income or Profit (Bankruptcy is Possible Even With High Revenue)
We ought to stop talking about revenue without focusing on actual profit
Carole Cadwalladr Talks About How Big Business Tried to Silence Her (and Why You Might be Next)
Our story is very different from Cadwalladr's for many reasons
Companies Conspiring to Keep Salaries Down and Undermine Competition
People who do all the practical work are being paid less and made to work for much longer
Links 14/04/2025: Disinformation, Public Disdain for LLMs, and "Lessons on Tyranny"
Links for the day
LLM Slop and SEO SPAM Take Us Further Away From Facts (the Case of IBM Layoffs)
Some of these can impact Red Hat as well
Gemini Links 14/04/2025: Ween and Historic Ada Project Management
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 13, 2025
IRC logs for Sunday, April 13, 2025
Influencers: Red Hat, Inc's IPO, 1999, post-mortem on the directed share offer to open source developer community
Reprinted with permission from Daniel Pocock