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

400-Page US Federal Court Against Abuses by Google, Microsoft and Front Groups That Abuse Volunteers for American Corporations
There are 386 pages in total (in the US claim)
Projection Tactics - Part IV: SLAPP by Americans Against Techrights (UK) to Hide Serious Abuses Against American Women
"PRs need to stop being complicit in suppression of information via SLAPPs"
Five Years Ago, After We Broke the Story About Richard Stallman Rejoining the FSF's Board, All Hell Broke Loose (for Me and My Family)
They generally seem to target anyone who thinks Richard Stallman (RMS) should be in charge or thinks alike about computing
Projection Tactics - Part II: Causing "Serious Harm" to Many People (Even Animals)
Narcissists and sociopaths are like that
Sirius Open Source's Latest Report: Fake (False) Number of Staff, Almost No Money in the Bank, Overdraft, and Growing Debt (About £100,000 More Borrowed)
massive (and still growing) debt
European Patent Office (EPO) Series: Photo-Ops Galore and Suspicions of Influence-Peddling
coverage of the EPO's Croatian junket
Pushing to the Top
Publishing is about exposing corruption
How Long Can a Company Delay Its Financial Report That Likely Confirms Exodus of Staff, Growing Debt, and Other Problems?
Brett Wilson LLP was meant to release its annual report some time early this month
European Patent Office (EPO) Series: Networking With the National Delegates
António Campinos with a prime opportunity to network with the Administrative Council delegates and lobby for his reappointment
 
Call for European Patent Office (EPO) Whistleblowers
The European Patent Organisation (EPO) might not reform the Office
Too Many "Marketers on the Payroll" at IBM, Selling Impossible Products That Cannot be Delivered or Will Never Deliver
IBM is rotting away
Media Says Microsoft's (XBox) Layoffs May be Record-Breaking
think somewhere in the range of ~5000 for gaming/XBox alone
Links 30/06/2026: What's Wrong With EU Age Verification, RSA Keys with Many Zeros
Links for the day
This is Not a Security, This is a Circus
Security does not mean "asked Microsoft for permission"
Communities Need Strong Leadership, Not Dictators Like IBM
Leadership in Free software is not ownership [...] Fedora will only last as long as IBM can somehow make some money out of it or leverage it to attract sharecropping
Patents Are Not "Cash Cows"
People who deliberately don't understand patents (or believe lies about them) will fail to understand how the world works (or does not work)
Sad Lives of People Who Think Women Are Just Sexual Toys (All They Have is Money)
money is still a man-made concept and life is finite
SLAPP Censorship - Part 123 Out of 200: Why Violence Against Animals Matters
Starting tomorrow (Wednesday) we'll begin telling stories about what happened last week
EPO Staff Union's (SUEPO) The Hague Committee, With Help of Lawyer, Challenges Lack of Rewards for Hard Work
The EPO is not about granting valid patents anymore. The horse-trading corrupt officials just see the EPO as some thing that "prints money"
Massive EPO Demonstration Today
It'll start in about 6 hours
More Layoffs in Microsoft's PR Department, Even Ahead of 'D-Day'
Notice they are not even waiting for the official date (nor week)
Gemini Links 30/06/2026: Music and Broken Hearts
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, June 29, 2026
IRC logs for Monday, June 29, 2026
Gemini Links 29/06/2026: Using More of GPLv3+ and Merits of Security by TOFU
Links for the day
Links 29/06/2026: Lemote Yeeloong Laptop With OpenBSD, Slop Ruins Code/Development
Links for the day
Antisocial People With No Computer Science Background Are Ruining the Technology Space (Like Officials With No Experience in Patents Destroyed the EPO)
This is a real issue; it needs to be widely recognised and tackled
DDoS Attacks Are a Crime and They Only Increase Interest (Intrigue) in Their Target
Information cannot be DDoSed out of reach/existence, except temporarily
Whistleblowing and Retaliation by Microsoft Workers Against Microsoft Seems Increasingly Likely
some will go to the press, looking to expose some shenanigans
SLAPP Censorship - Part 122 Out of 200: Garrett's Solicitors Confirm That Garrett is Ban-Evading and Spying on Our IRC Network
his solicitors basically acknowledge this
PIPs and "Retirements": IBM Layoffs in Anything But Name
That former Red Hat (now IBM) staff threatens to put my wife and I in prison is worse than cruel
Contact Members of the EPO Administrative Council, Tell Them the EPO (Office) Became a Disgrace and an Enemy of Europe's Citizens
If you live in Europe (not just the EU, even Turkey is included), please contact your delegates
The World Needs GNU/Linux for Security, Turn Off "Secure Boot" (It's the Opposite of Security)
They call it "Secure Boot", but what does it mean to say "Secure" when you actively opt for back doors controlled by Microsoft, the FBI, and many more parties?
In Signal of Weakness or Phasing Out XBox (Not Sustainable, According to the CEO) Microsoft "Pauses New Third-Party Game Pass Deals"
Moments ago
Two Pieces About "AI" This Morning Were Paid-For SPAM at The Register MS
The Register MS is the "Tech News" publisher you can pay to promote your company and even key-word-stuff pages for SEO purposes
Week of Microsoft Layoffs, Maybe Record-Breaking Scale
They will mislead about the scale
Links 28/06/2026: More Om Malik Eulogies, Cloudflare Promotes Web Browser Monocultures
Links for the day
IBM's Alderon as "Silent Layoffs", Not Just Bailout From Taxpayers
Seeing through the noise
'Modern' Web: "Stop! You Are Browsing Too Fast!"
Can the Web ever recover from this?
Pensions Tied to Ponzi Schemes Are Themselves Ponzi Schemes
Pensions are becoming more like that as well
Laptop Bricked After Microsoft Certificates Expiry
Is "Jim" dead?
Monoculture in Europe as National (or Continental) Security Threat
We need more browser diversity
Canada 5-0: GNU/Linux Rises to 5.0%, Windows Rapidly Falls to New Lows
Will we be seeing 6-0 (6%) by year's end and will Microsoft be shown two red cards?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 28, 2026
IRC logs for Sunday, June 28, 2026
Gemini Links 29/06/2026: Sansieviera, HiFi, and Self-Signed Certificates
Links for the day
Outsourcing is Not Security
Outsourcing to Microsoft is the opposite of security
Links 28/06/2026: Turkey's State Broadcaster Suspends Commentator, Journalists Under Attack
Links for the day
Debugpoint.com Turns to LLM Slop for 'Help'
This is how sites die
Follow the Real Security Experts
Werner Koch
Assessing the Upcoming (July) Proprietary/GAFAM Cuts
The total (or %) matters to us because it can help shed light on what scale of layoffs to expect next week
Microsoft Lunduke Does Not Correct or Clarify Misinformation That He Posted (or Repeats It Instead)
Not the first time [...] detracts and/or distracts from legitimate criticisms
How Not to Do Security
Asking Microsoft for permission
Gemini Links 28/06/2026: Simulation Theory and Pursuit of Novelty
Links for the day
Five Years After Its Formation Libera.Chat Has the Most Simultaneous Users in Internet Relay Chat (IRC)
netsplit.de also measures the cross-network total at over 300k, probably for the first time in years
The Slop 'Religion' is Dying: From Widespread (Paid-for) Hype to Widespread Hate
Wait till "sentiment" in Wall Street - not just general (public) "sentiment" - shifts strongly against slop
For Whistleblowers' Sake, Choose Hosting Platforms Wisely
Techrights is hard to 'sedate'
How to Discreetly Leak Important Information to Techrights
Some years ago we published multi-part series about how to contact us securely
Expect Many More Whistleblowers From Microsoft
We envision many pissed off workers from Microsoft will become whistleblowers after next week's giant wave
Efforts to Resume Progress on FreeJS, LibreJS, and Reduce Dependence on Microsoft
It's still in a relatively early development stage
Whistleblowers Improve the World
we should appreciate and respect whistleblowers
Microsoft Windows Plunges to All-Time Lows in Japan
Microsoft is disintegrating; many people no longer use (nor need) Windows
GNU/Linux Turns 43 in 3 Months From Now
The Manifesto of the Free software movement (GNU Manifesto, 1985) turned 40 last year
SLAPP Censorship - Part 121 Out of 200: One Day We'll Discover What Company or Rich Person/s Funded the Lawfare Against Us
Even if the law firm shoulders some of the losses, then it is in effect an investor in the lawfare, according to established caselaw
Working on "Linux", But on Microsoft's Payroll
Under the totally false guise of "security" those same people are now promoting TPMs and other horrible things
Links 28/06/2026: Energy Crunch, EEE by Microsoft, and John Bolton Pleads Guilty in Dictatorship of SLAPPs
Links for the day
Jim Not Dead Yet
Let's wait a few more days
Microsoft Layoffs So Big They Cannot Even Wait for 'D-Day' (July 1)
"Layoffs at Xbox Appear to Have Already Begun, with Multiple Compulsion Games Employees Announcing Their Departures"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 27, 2026
IRC logs for Saturday, June 27, 2026
Links 28/06/2026: Heatwave in Europe and Media Failing to Actually Criticise Power
Links for the day
Gemini Links 28/06/2026: Poems, Photographs, and Neoliberalism as Religion
Links for the day