Bonum Certa Men Certa

An Unexpected Reality: The Court of Appeals for the Federal Circuit Emerged as a Champion in Fighting Software Patents in the US

Software patents impose a “deadweight loss on the nation’s economy”, said Circuit Judge Haldane Mayer a few months ago

Haldane Robert Mayer



Summary: How the highest court below the Supreme Court lends a hand to the destruction of software patents in the United States (and by extension perhaps the entire world)

THE Federal Circuit (CAFC) has been growingly supportive of patent reform. CAFC even eliminated a lot of software patents, in lieu with the ruling on Alice.



CAFC is far from perfect, but it used to be one of the worst and now it's actually one of the best. From being a big proponent of software patents (back in the Rader days) it's now an opponent of them. Even Mayer, traditionally the proponent of software patents, is now strongly against these. The longer it goes on for, the lower the certainty software patents enjoy. See this new article titled "Federal Circuit Continues The Case-By-Case Approach For Determining Patent Eligible Subject Matter".

"CAFC even eliminated a lot of software patents, in lieu with the ruling on Alice."According to this new article, changes are afoot. "Since a preliminary injunction is ordinarily awarded well before any final judgment on the merits," Patently-O explained the other day, "nobody actually knows which side will win the case. Because of the powerful nature of injunctive relief, the courts have long required that the party seeking relief to at least prove that it will likely win the case. Although termed a “factor” in the four factor analysis, it is actually a necessary element that must be proven before relief will be granted. “The movant must establish both “likelihood of success on the merits and irreparable harm” for the court to grant a preliminary injunction.”"

As Patently-O points out further down: "With the broader construction, the Federal Circuit remanded to consider whether the presented prior art creates an invalidity problem."

"What we don't wish to end up pursuing is some kind of a system which, rather than reward, simply punishes inventors and makes their lives harder."There are two principal criteria for invalidation: one is prior art and another is triviality or abstractness tests. With both 'tools' at hand, software patents are in a rather weak position at this Federal level. What happens a lot post-Alice is, companies attempt to sue others using software patents and merely burn their own pockets. IAM has this new "report" titled "Monetary consequences for falsely alleging patent infringement" and Patently-O, writing again about CAFC, mentions pre-AIA law in relation to a particular case which is deems likely the "Last Inventorship Case". To quote: "Based upon these (and a few other) facts, Mylan argues that (1) the ’patent had been derived from someone at the FDA – and therefore the patentee was not the “inventor” as required by pre-AIA law, 35 U.S.C. 102(f); and (2) the invention would have been obvious in light of the FDA communications. On appeal, however, the Federal Circuit affirmed the lower court holding siding wholly with the patentee."

While we are still waiting to see what happens to AIA and the USPTO Director under Trump (there are conflicting rumours about that) we sure hope to see more of the same progress -- something along the lines of reducing patent scope. Red Hat's OpenSource.com published "making-us-patent-system-useful-again" only a few days ago. "In the U.S. patent system," it said, "if maintenance fees are not paid, an issued patent goes into the public domain. Find out how to search the database."

Remember that the original purpose of patents was exactly that. The temporary monopoly was a reward or compensation for doing that.

What we don't wish to end up pursuing is some kind of a system which, rather than reward, simply punishes inventors and makes their lives harder. That is exactly what software patents have done to programmers. Take Compuverde for example; based on its new press release, it has nothing to brag about except software patents (which are rather useless in the US these days).

As we noted earlier in the week, software patents do get accepted by CAFC on rare occasions, but one cannot rely on any of this. In almost 80% of the cases last year CAFC agreed with PTAB, which is still killing a lot of patents and certain firms -- not law firms of course -- are loving it enough to pay for press releases about it.

Recent Techrights' Posts

Mass Layoffs at IBM, But Mostly in Secret (PIPs and 'Voluntary' Redundancies)
Gerstner laid off a record number of people; Krishna tries to find 'innovative' new ways to cause workers to leave
Secret Layoffs at Microsoft, Apparently More Sites Will Shut Down Entirely
vindicates us and serves to affirm what we've said for over a month
SLAPP Censorship - Part 156 Out of 200: Brett Wilson LLP Becoming Wilson FC
Now acting almost like one-person shop (lots of staff has fled this past year)
 
Sources-First Publication
Thank you for keeping us on track
Ubuntu is Not Linux
I was one of the first users of Ubuntu
Links 21/08/2026: Outrage Over Politicians Who Support Slop-Feeding Data Centres, "America Is About to Get More Expensive"
Links for the day
Gemini Links 21/08/2026: Rain Coming Back and "Small Internet"
Links for the day
Slop-ware: Nobody Knows What Code Goes Into Linux and Most Developers Cannot Understand the Rust Code (Even If They Tried)
So nobody is in charge
The Slop Pyramid Scheme (Not Boon!) Isn't Good for GNU/Linux, Even If the Plagiarism Engines (Framed as "Training" or "Intelligence") Almost Always Run GNU/Linux
We need the slop pop - we need the bubble to pop
North America: GNU/Linux Measured at 13%-15% Every Night
many (north) Americans use GNU/Linux at home and are using it to access the Web in the small hours of the morning
Links 21/08/2026: "Silicon Valley’s Billionaire Cults Are Coming for Democracy" and "Who’s Raking it in as the National Debt Explodes?"
Links for the day
SLAPP Censorship - Part 157 Out of 200: What is a 'Defamation Troll'?
"Defamation Mill" also
Northern Europe Leads the Pack in Abandoning Windows After Threats Made to Greenland (Says Clownflare Data)
Clownflare has a vast trove of data, so it cannot be easily dismissed as pure nonsense
Clownflare: In Past 12 Months Microsoft Windows Fell From ~80% to ~75% on Desktops/Laptops in Asia
Microsoft is deep in debt
The State of Slopfarms About "Linux" in August 2026
The Web needs serious cleanup, which curation can help deliver
IBM Offers Workers Some Money to Fire Themselves, It's Called "Next Step" and It's Allegedly 'Extended' (Not Enough Fools Have Fired Themselves)
Will IBM executives - including the CEO - ever be held accountable?
£5 Million Unsolicited/Undisclosed Bribes and What That Means to British Politics
It still remains unknown (disclosure denied) who helps fund the £1 million lawfare against us
[Satire] Pocock, Binface & nobodies vs Farage: defamation before UK High Court
Reprinted with permission from Daniel Pocock
The IBM Censorship Team, PIPs (Silent Layoffs) in IBM Europe
There seem to be many de facto layoffs going on at IBM right there
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 20, 2026
IRC logs for Thursday, August 20, 2026
Gemini Links 21/08/2026: "Ensmallening the BigWeb", "Rust Dependencies"
Links for the day
Links 20/08/2026: 'Linux' Foundation Promoting Slop Hype for Money (Hype as a Service), Malaysia’s Exports Jump 38% Year-on-Year
Links for the day
Gemini Links 20/08/2026: A "Break From Routine" and "Modem Was the Problem"
Links for the day
Clownflare Reckons GNU/Linux is on Almost 1 in 10 Laptops/Desktops in Western Europe
Western Europe and China are leaving more of GAFAM behind them
Looking Ahead at September
Rianne and I look forward to a productive September
Links 20/08/2026: Facebook "Ran Ads for an App That Promised to Nudify Female Politicians" and Facebook Faces "Social [Control] Media Addiction Trial"
Links for the day
Clownflare Sees GNU/Linux at 16% Market Share on Desktops/Laptops in Tajikistan
in Tajikistan it seems like adoption of GNU/Linux is exceptionally high, based on a very large data set associated with Web access
The Demise of Social Control Media Continues
Entering (anew) social control media in 2026 seems foolish
SLAPP Censorship - Part 155 Out of 200: Throwing Stones in Houses Made of Glass
character-assassination-as-a-service
Gemini Links 20/08/2026: Planners, Pantsing, Vinylyssee
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, August 19, 2026
IRC logs for Wednesday, August 19, 2026
Gemini Links 19/08/2026: "Big Boost in Autonomy" and "Answer of E-Mail"
Links for the day
Firefox in Trouble in the US, Down to Lowest Level in 20+ Years
more sites will stop or intentionally neglect Firefox support
Clownflare: More Than 1 in 5 Laptops or Desktops in El Salvador Run GNU/Linux or ChromeOS
Clownflare Radar reckons it's more like 20%+ now
SLAPP Censorship - Part 154 Out of 200: Computer-Generated Legal Filings From Men Who Are Salaried by Mass Plagiarism Companies in Another Continent (America)
This isn't the behaviour of a moral person but of some sort of "crypto bro" or "slop bro"
Fired by IBM for Medical Leave, Rampant Censorship of IBM Critics Explained
We've already caught and showed many cases where thelayoff.com deleted comments that were not even remotely racist
Links 19/08/2026: First Amendment Under Fire by White House of Cards, "Universities Were Forced to Pay Up" for Not Censoring
Links for the day
Gemini Links 19/08/2026: What Friendship Means, Sm0lNet/SmolNet, and New Feeds
Links for the day
Omarchy is Already Dying
Same as the life cycle of slopfarms
No, WSL (Windows With Fake 'Linux') Isn't Growing Faster Than Ubuntu, This Was Disinformation Spread by a Microsoft Propaganda Site, Then Spread by Slopfarms
Be sceptical; Microsoft is truly desperate for anti-Linux spin right now, seeing that Windows is in a freefall
Microsoft's Mass Layoffs Impact the Ability to Run Microsoft
Can Microsoft still run Microsoft?
Microsoft's Active Directory ("AD") and "Entra" Are National Security Threats
Even the US government concluded Microsoft could not be trusted for security; it issued a formal report about it in April 2024
Instant Impact: GNU/Linux Skyrockets to 10% in China Days After Policy Changes
Let's see what the 'aftermath' looks like by year's end
Links 19/08/2026: Timothy James King (AmigaDOS) Dies, GitHub Goes Offline, Finland Wants to Shun Social Control Media
Links for the day
Slop's Achilles Heel: It Increases the Workload, Not Just Costs
Set aside its inability to scale well
Improving techrights.org
Technical debt (like 17 years with WordPress) is something that's better to address early, not later
Mass Layoffs at Dropbox, Blame the Debt, Not Slop Hype
The debt of Dropbox Inc., which isn't an imaginary (estimated) thing, is over 4 billion dollars
Microsoft is 'Angel of Death' to Developers (Even Its Own), 'Voluntary' Layoffs Happening Again
From what we are hearing and reading, there are 'voluntary' layoffs again
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 18, 2026
IRC logs for Tuesday, August 18, 2026
Gemini Links 19/08/2026: Shirts, Handwriting, and Fights in Geminispace
Links for the day