Bonum Certa Men Certa

After McRO v Namco Case (at CAFC) the Patent Microcosm Works Overtime to Produce Pro-Software Patents Propaganda, Smear the Supreme Court

Writing their nonsense only when it helps them attract 'sales' (where desired 'products' are typically lawsuits)

A typewriter



Summary: Increasingly desperate to convince people to pursue software patents and/or use their software patents to initiate growingly risky lawsuits (high risk of losing), the patent microcosm hugs McRO v Namco while distorting the complete record of the Court of Appeals for the Federal Circuit (CAFC) on this subject

WITH patent quality still a huge problem at the USPTO, as we last noted in our previous post, it's only expected that many invalid software patents remain inside the system, probably hundreds of thousands of them (some have expired by now and will thus never be invalidated).



After Alice (2014 decision by the Supremes) a lot of software patents essentially became invalid, but only upon reassessment/assertion/challenge/appeal. The Court of Appeals for the Federal Circuit (CAFC), quite notably, finds them invalid about 80%-90% of the time. CAFC is where software patents typically come to die (the question has not returned to the Supreme Court since 2014). There's rarely a chance for appeal after that, maybe just a referral or some other extraordinary circumstances.

"They're most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant)."Patent lawyers are rightly upset (from their point of view that is hinged on profits from legal fees) at the Supremes for 'interfering' with the patenting of software. They are also upset at CAFC for invaliding so many software patents. They're most upset at (and growingly vicious against) PTAB because it reverses decisions to grant (post-grant) at a very high rate and at a low cost (to the petitioner/appellant).

How do patent law firms respond to the current situation? Simple! They lie. They cherry-pick, they spread half-truths, they insult judges, they shame or block other people (yours truly included), and they generally show their true selfish selves. I have spent years writing about this and I saw how bad this can get. These people are not friends of investors and inventors. They're leeches. They just try to come across as professional, objective, and law-abiding.

Last week we wrote several articles about McRO v Namco noting (quite correctly as it turned out) that patent law firms would start another Enfish-like extravaganza in the press. They latch onto this decision in an effort to market themselves and mislead the public (potential clients). Here, in one of their blogs, the predators are trying to take down the Supreme Court's decision on Alice. Section 101 is named as though it's a nuisance that needs to be removed. Here is one of the predators saying that he is "not sure CAFC using "preemption" in same way envisioned by SCOTUS in Alice-MCRO seems more like "passes step 2" case" (refers to steps in the law).

"They just try to come across as professional, objective, and law-abiding."An 'article' or 'analysis' (really marketing/self promotion) by Joel Bock, David Metzger, andEric Sophir of Dentons says "McRo decision gives software/computer-based patents a big boost," but that's pure sensationalism. This headline is wishful thinking nonsense as it ignores ~90% of CAFC's decisions on the subject. How convenient...

Where were sites like these each time CAFC ruled AGAINST software patents? Don't believe patent lawyers who say software patents in the US are suddenly fine. For those who think it's just an isolated article or few articles, see also [1, 2, 3, 4, 5, 6, 6, 7, 8, 9, 10, 11, 12]. We don't have time to rebut each of these individually, but what we have here is rigged “media” of lawyers. Over 20 articles have been produced about a CAFC decision in favour of software patents and usually there are zero or very few about decisions against software patents. "Liars" might not be the right word to describe the authors by; they're just opportunistic and they are selectively covering things so as to promote software patents under the guise of 'analysis'. We saw this many times before and provided evidence of it.

"Don't believe patent lawyers who say software patents in the US are suddenly fine."Noteworthy is the fact that the legal firm which fought for software patents here is the same firm that works for Microsoft (on patents) and the EPO hired to bully me (Mishcon de Reya). Here is their press release about it. They are clearly hostile towards people like me, for at least 3 reasons (EPO pays them to send me threatening legal letters, Microsoft pays them to fight on the patent front, and they are working to defend software patents). Speaking of Microsoft, the company still says it "loves Linux" but it also loves software patents which are inherently not compatible with Linux. Here is yet another 'article' (from a Microsoft advocacy site) showing that Microsoft celebrates the above decision. We gave another example of this several days ago. The intersection of interests here is uncanny.

What did Watchtroll say about all this? We mentioned some of his responses before (widely-cited by others in the patent microcosm on the face of it), but now there's more on other subjects [1, 2], still advancing a patent maximalism agenda (as if limiting patent scope is a sin).

Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest.

IAM's writers, longtime propagandists of software patents and PTAB bashers, carry on passing off agenda as 'news', this time with the headline "After the CAFC's Planet Blue decision early Alice motions may now fade away" (citing only the patent microcosm, e.g. a partner in New York-based firm Kroub Silbersher & Kolmykov).

"Proponents of software patents, including those who track the impact of Alice closely, latch onto this one single decision in favour of a software patent while mostly ignoring the rest."We are still waiting for IAM to give a platform not just to patent lawyers who profit from software patents but actual programmers. Not that it ever happens...

"In the following piece," IAM wrote, "Silbersher argues that the true significance of the case is not what it says about software patentability, but in the way it may affect how and when courts handle motions to dismiss based on the Supreme Court’s Alice decision. Read with the earlier CAFC judgments in Enfish and Bascom, Silbersher states, Alice motions at the front end of a litigation are set to become significantly less attractive. For patent owners, that is very good news."

That's just another example of lawyers name-dropping Enfish and Bascom, hoping that readers will pay attention to none of the other decisions (all against software patents as of late). This isn't reporting, it's lobbying.

Speaking of lobbying, David Kappos rears his ugly head again. He was hired by large corporations including IBM (his former employer) to help demolish Section 101 and "IBM’s Chief Patent Counsel Manny Schecter welcomed the McRO decision," according to the above. Indeed, based on his tweet, IBM is still against the Supreme Court and for software patents. Benjamin Henrion told him that "freedom of programming is a one liner."

"How far will the patent lawyers go in their attempt to save software patents?"The software patents proponents of IBM, a huge patent bully, are at it again. They just don't seem to care what the Supremes say. Here comes IAM trying to shoot down Section 101 at a legislative level. To quote: "Of course, the likes of former Chief Judge Michel would argue that the fundamental test that the court is trying to apply to determine whether something is patent eligible remains inherently flawed. But as the case law on 101 as it applies to software begins to mount from the Federal Circuit, members of the tech community can at least rest a little easier that question marks no longer hang over large parts of their patent portfolios. If nothing else, that is to be welcomed."

IAM says that "members of the tech community can at least rest a little easier" with software patents, but that's a lie because technical people dislike these. Reading IAM about patents is like watching Fox 'news' coverage of all things Obama. It's just agenda disguised/dressed up as news. It's agenda presented in the form of 'news', and truly a great service to Battistelli when he needs to support some lies of his.

Watch the patent microcosm trying to resurrect software patents by trashing the Supreme Court [1, 2] in light of the above. It's like that pack of hyenas we wrote about a week ago. How far will the patent lawyers go in their attempt to save software patents?

"Is the Technology for Self-Driving Cars Patent-Eligible?"

"Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared."That's the headline of this new 'analysis' from the patent microcosm, writing about software patents that are disguised as 'device' (cars), prior art being the driver. The answer is probably no; no for the courts but yes for the USPTO, which continues to grant almost everything that comes in, irrespective of quality, scope, prior art, etc. The examiners cheat on their timesheets (defrauding taxpayers), so shoddy work seems to be the norm. Here we have an article about Goldman Sachs filing for software patents on electronic payments -- the one area where the invalidation rate of software patents is extremely high (around 90% of patents invalidated). Blockstream says it is pursuing patents in this area/domain, but it has not got any. Patent examiners oughtn't grant any, either (citing the CLS Bank case).

Elsewhere in the news we find this short docker report about a case in the court of choice of patent trolls, one of several in the Eastern District of Texas. It upholds software patents, as usual, probably because it's a farce of a court and it likes to brag about being friendly to the plaintiffs, especially trolls. Upon appeal, and if it reaches CAFC (expensive), the patent would probably be invalidated. This can be a rather traumatic experience to people who thought they had earned valid patents from the USPTO. Take the case of Keith Raniere; he used several software patents for frivolous litigation and got penalised very badly for it, as we noted earlier this month. Another new report about it says: "The plaintiff, Keith Raniere, filed the suit in February 2015 against AT&T and Microsoft, alleging the companies were using a number of his patents for intelligent switching systems for voice and data. In his lawsuit, Raniere claimed that AT&T used the software patents in its AT&T Connect service and Microsoft used the patents in its Lync 2010 products. [...] Following dismissal, both AT&T and Microsoft filed a motion to have their attorney fees covered by Raniere. AT&T requested that $935,300 be paid by the plaintiff and Microsoft presented $202,000 in costs and fees to be covered. Lynn requested both parties present proof of the costs and fees incurred from the case and denied Raniere any chance to correct or modify his lawsuit."

Had the USPTO never granted these software patents, all these efforts, time and money (going into the pockets of patent law firms) would be spared. But therein lies the key point. The greater the mess, the more profit the patent microcosm makes. This isn't only a US problem but a European one too (see all the UPC lobbying).

"The greater the mess, the more profit the patent microcosm makes."We previously wrote about software patents in Australia (they sort of exist). This new post from the patent microcosm says: "The expansive approach of NRDC was subsequently relied upon by the Federal Court in 1991 to establish that computer programs were not excluded from patent eligibility under Australian law, a decision that effectively opened the gates for software patents in Australia."

As we wrote about this before, we can safely say that Australian software developers are upset by that. They never wanted such patents; it's the patent microcosm that did (while trying to convince developers that they too need software patents).

Recent Techrights' Posts

They Will Never Leave Linus Torvalds Alone, Rust is Just Another Way to Cause Instability and Infighting in Linux
We already identified the Rust "community" as troublemakers more than 5 years ago and we wrote about the evidence
Slopwatch: Anti-Linux Articles Published by Bots, Dominating Google News
So a lot of the Web is Microsoft chatbot-generated anti-Linux FUD
 
Gemini Links 14/02/2025: Mysterious Friend and "Eight by Eight"
Links for the day
Slopwatch: All Those New 'Articles' Are Fake and Crafted by Chatbots (LLM Slop)
Google News is promoting these as "Linux" news; they're not even made by humans
Apple: Social Justice or Social Nationalism?
Remember to buy Apple, folks
Links 14/02/2025: Mass Layoffs at Sophos, Chatbots Failing Very Badly, "DOGE as a National Cyberattack"
Links for the day
Moving Away From Certificate Authorities (CAs) Like Let's Encrypt Means Taking Away From the US Government the Power to 'Censor' Sites by Revoking Certificates
Gemini capsule is cheap to run and easy (easier than a Web site) to maintain. More people disillusioned and frustrated with social control media flock to it.
BetaNews' Managing Editor Wayne William Took Charge of GNU/Linux Articles and His Articles Are Real (He Actually Wrote Them)
We are frankly relieved to see that Wayne William recognised the problem and did something about it
Links 14/02/2025: Publicity Rights Violated (ByteDance), Bribes to Trump Passed via Social Control Media 'Settlements' Again
Links for the day
Gemini Links 14/02/2025: Constitution, Cosmic DE, and More
Links for the day
Links 14/02/2025: Measles Outbreak in Texas, Zelensky Warns Russia Will Attack a NATO Country
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 13, 2025
IRC logs for Thursday, February 13, 2025
Gemini Links 13/02/2025: gwit and Restart
Links for the day
Links 13/02/2025: Algorithm Bots and 'Teleport' Breakthrough
Links for the day
EPO Staff Representatives Confront the President Who Says 'F--king' in Front of Female Workers Over Measurable Discrimination Against Female Colleagues
Central Staff Committee versus Lukashenko's sponsor
IBM Layoffs in 'RTO' Clothing Reported by Thomas Claburn
This "hey hi" (AI) nonsense is just a go-to excuse that IBM and GAFAM (and many others) use
Still Waiting for the EU to Abolish the Illegal and Unconstitutional Court Linked to EPO Corruption and Lobbyism by the Patent Litigation Industry
Sadly, all the blogs that used to talk about those issues have been infiltrated and then completely hijacked by the very perpetrators of the illegality
Social Engineering of the Free Software Movement is a Corporate Takeover With Code of Conduct (CoC) to Drive Out or Expel Dissent
Richard Stallman (RMS) covered "cancel culture"
Links 13/02/2025: Mass Layoffs at Google (Disguised as "Buyouts"), Telecoms Price Hikes as Collusion/Price-Fixing
Links for the day
[Video] Richard Stallman Questions and Answers Session in Google's YouTube or Invidious
From last night
Gemini Links 13/02/2025: Broken Watches and Naming Types
Links for the day
Corrupt Bill Gates Worming His Way Into Richard Stallman Videos in Google's YouTube
Reputation laundering riding other people's names?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 12, 2025
IRC logs for Wednesday, February 12, 2025
Links 12/02/2025: Crytek Layoffs, Security Holes, and Giving Ukraine to Russia
Links for the day
Relaying GAFAM Talking Points and Lies Using GAFAM LLMs, or Slop Pasted in by Brittany Day
linuxsecurity.com is relaying slop, i.e. misinformation
Photos From This Evening's Talk by Dr. Richard Stallman in Torino, Maybe a Video Soon
The talk that Dr. Richard Stallman gave today (a few hours ago) was recorded and streamed
IlSoftware.it Covers Richard Stallman's Visit to Give Talks in Italy
The publication is in Italian, the talk was in English
Macho Patent Office
At the EPO there's always room for women in top roles
Gemini Links 12/02/2025: "Bream Gives Me Hiccups", Making Chinese Tea, and More
Links for the day
This is Why Codeberg Issues an Apology Today
This response was clear and relatively swift
The Register Studies (to Affirm) Reports of IBM Layoffs "at the Finance and Operations business unit"
something about that specific unit
Links 12/02/2025: SSL FUD, DEI Phase-out, Felonies Committed by MElon (Data Breaches)
Links for the day
Italian Media Covers Richard Stallman's English Talk Ahead of Tonight's Public Appearance
article in La Stampa
Destruction and Distortion of Information, Including Facts About Linux (Bonus: This is Destroying the Planet)
All that LLMs have going for them is hype, and moreover media that intentionally misrepresents them and their supposed capabilities
Google Seems to Have Just Killed All Instances of Invidious
YouTube is rapidly becoming just "another Neflix"
Microsoft Skype in a Freefall: About 20% Decrease in Site Traffic in 3 Months (Amid Microsoft Phasing Out Credits)
Microsoft axing more services/features may mean that now they scrape the bottom of the barrel and Skype will simply die, discontinuing service (like ICQ) in a matter of years
Gemini Links 12/02/2025: Depression, Gabbro, WikiTok, and More
Links for the day
Links 12/02/2025: Health, Security, and Monopolies
Links for the day
Gemini Protocol is Increasingly Important to the Net
Gemini Protocol will turn 6 this summer
Former EPO Manager Warns That the Illegal 'Court' for "Unitary Patents" Enables “Law Shopping”
Daniel X. Thomas opposed the very existence of the UPC, which any honest person could recognise was both illegal and unconstitutional
Like GAFAM, the EPO is Passing the Financial Pains to Staff
the EPO is operating illegally at this point
Morale at Microsoft Ruined by the Company Labelling Thousands of Workers 'Low Performers', Sacking Them on the Spot and Denying Them Basic Benefits
people laid off as "low performers" go to social control media to bemoan the label
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 11, 2025
IRC logs for Tuesday, February 11, 2025