Bonum Certa Men Certa

Using “China!” and Distortion of Data From Lex Machina, the Litigation Lobby Promotes Software Patents

"The Chinese Are Coming!" (British Empire's national broadcaster on the weak -- and obviously hypocritical -- narrative of Chinese 'imperialism')

The Chinese Are Coming



Summary: Patents on algorithms are promoted in all sorts of misleading (but familiar) ways, which include bias by omission (cherry-picking), fake economics, distortion of statistics, and possibly xenophobia too (fear of China)

China seems to have become almost a role model or a poster child to Battistelli's EPO (it wants applications from China at the expense of anything). Quality of patents does not matter to them. Public interests or service don't matter either, just the profit of some tiny niche of people who make a living out of patents alone. Patent maximalists in the US, likewise, regularly use "China!" as their argument for patent maximalism (Watchtoll, IAM, David Kappos and IBM can't stop talking about "China!"). It's troubling because it's incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).



Their argument in a nutshell is, if we don't allow algorithms be to patented, China will "win" -- a loose term for simple-minded and careless people like Donald Trump (there are many reports like "Donald Trump stokes foreign policy fears in China").

"It's troubling because it's incredibly dishonest and what they are doing is clearly destructive to their nations (not that they are patriots, they are just greedy and self-serving).""Good to see that SIPO aligns with the EPO's "any hardware approach" when it comes to patent-eligibility," said Bastian Best (very vocal proponent of software patents but not a software developer) the other day. That's the same man who had also linked to Steve Lundberg's "patents4software" blog (non-developer speaking 'on behalf' of developers [1, 2]). Lundberg says "Kudos to China on Software Patents," alluding to news which we covered in [1, 2]. They are trying to argue that just because China permits software patenting so should the US, which scales back if not eliminates them.

Jack Ellis, another lobbyist like Lundberg (they are disguised as professionals, but all they do is lobby), has just published this post titled "China relaxes rules on software patentability – and the United States loses more ground".

Front groups like IAM are using shame tactics against the USPTO. It's part of that push which we have been writing quite a lot about recently. They also do this in India quite frequently (at least twice in the past week alone).

"Front groups like IAM are using shame tactics against the USPTO."Ellis says "United States loses more ground," as if it's a bad thing to control quality. Ar they really losing by improving their system? IAM's lobbyists just can't help but show what they really are. It's not a news site and it's just as biased as Techrights, except we in Techrights are not funded by anyone and certainly not selling influence under the guise of 'journalism'.

Watchtroll was of course all over this too, pushing for software patents under the headline "China relaxing barriers to software, business method patents with revised patent guidelines," which added business methods to it.

IAM didn't stop there. The lobbying, which characteristically came out just before the weekend started, intensified even further with gross misinterpretation of data from a group antagonistic towards patent trolls, Lex Machina. See this IAM post titled "Software patents fight back in the US as Federal Circuit decisions begin to influence lower courts" and examine it closely enough. This is mostly fiction from the think tank known as IAM, which misinterprets data for the sake of promoting software patents, as usual.

"IAM is lying/distorting things again, but that's just its business model."The core of their argument is CAFC, where it says: "The fall in 101 invalidations at the end of 2016, though, may indicate that a series of decisions last summer by the Court of Appeals for the Federal Circuit (CAFC) including Enfish, Bascom and McRo is beginning to have an effect."

There were far fewer patent lawsuits in 2016, and fewer people bothered even bringing software patent to courts (after Alice, for obvious reasons). IAM is lying/distorting things again, but that's just its business model. That's what many firms are paying it for. It's their propaganda mill, it's tasked with perception management, e.g. softening the image of patent trolls.

Writing about the same data as above -- albeit without the lobbying (or pseudo-activist) slant -- Law 360 said that Lex Machina "tallied the number of patents that courts have invalidated under Alice." To quote the opening paragraph (most of it is behind paywall anyway):

The national law firms that handled the most patent cases in 2016 includes several big names that were also among the busiest in 2015, according to a new report by Lex Machina, which also tallied the number of patents that courts have invalidated under Alice.


We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills. IAM's conclusion, as put in the headline (to make it into news aggregators) is highly misleading, but that's what their subscribers pay for. They deposit a small proportion of their income and withdraw influence and warped public perceptions. Some of the misguided clients might be lured into lawsuits that would be lost; only the lawyers would profit.

"We have repeatedly made the (hopefully compelling) argument that many software patents are now de facto invalid and their holders no longer even bother suing, as they can see the high (and growing) likelihood that legal action would officially turn their patents to dust, leaving these holders with nothing but legal bills."Looking closely at what CAFC has been doing, in 2016 it agreed with PTAB invalidations almost 80% of the time and the same trend continues this year, based on figures that we recently shared here. Law films keep cherry-picking CAFC cases (even old ones, as IAM did above) in order to make it seem as though software patents still have 'teeth'. Published in a few domains of patent lawyers and other lawyers [1, 2], one such law firm explained "Federal Circuit Rules Software Patent for a User Interface is Patentable Subject Matter," but if one looks at all the other CAFC cases, then it's abundantly clear to see that they are just cherry-picking cases and nitpicking reality. Later on we will write about some new cases where software patents are invalided en masse -- not something that IAM would touch even with a 5-foot bargepole (bias by omission).

Recent Techrights' Posts

SLAPP Censorship - Part 189 Out of 200: A Terrible Idea to Condemn Projects for Using Slop 'Code' When Your Own Employer Does This (and Profits From Every Company Doing So) or to Call Distros 'Not Secure' While You Advance Back Doors
"I don’t want a back door. I want a front door."
 
Gemini Links 19/09/2026: The Fundamental Human Assets, The History of Gopher's "i" Type, and ROOPHLOCH 2026
Links for the day
Links 19/09/2026: "OpenAI and Microsoft Knew They Were Starting a ‘Doom Loop’ [of Mass Plagiarism 'Normalised' by Brute Force] for the web", Calling It "Hey Hi"
Links for the day
8 Series Going on at the Moment in Techrights
4 series about SLAPPs and related matters
Linux Kernel Becoming a Slopfest - Part 4 - Outsourcing to Microsoft, Approaching 10 Gigabytes
Can we blame Microsoft for those DDoS attacks? Partly.
Software Freedom Day 2026 is Today, Week-long Celebration in Brazil
In Brazil, Clownflare reckons about 1 in 20 laptops/desktops might use GNU/Linux already
Red Hat Lost 2,000 Staff (Net Loss)
Maybe by year's end it'll be a 20% reduction
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, September 18, 2026
IRC logs for Friday, September 18, 2026
Gemini Links 18/09/2026: Setting Goals, Tiredness, and Admissions From LLM Purveyors It Was All Along About Building Plagiarism Engines Sold as "Intelligence"
Links for the day
Links 18/09/2026: Microsoft Boasted Slop is Just Copyright Infringement/Plagiarism, Floods in Europe
Links for the day
Slop Ruins Development and Reverse Engineering, It Rewards Retarded "Slop Kiddies" (to Quote Andy ‘TheFlow0’ Nguyen)
Slop is just a fatal cancer that kills the body, then dies with the body it killed
Internet Relay Chat (IRC) and Mailing Lists Are Still Better Than Discord, Slack, and Discourse
Discourse is "open" "bossware"
Links 18/09/2026: Disgust Over LLMs and Why "Agents" (Bots) Are Nothing More Than "Spam"
Links for the day
Software Freedom Day is Tomorrow
events coming
Illegal and Unconstitutional Tribunal That SLAPPs Critics Does the Illegal and Unconstitutional: It "Rubberstamps Software Patents"
This is not a legal system. This is mafia.
Privilege in 'Linux' Foundation (Double Standards) and What the FSF Should Avoid Doing
If RMS can talk about politics, others too should be able to talk about politics
Seems Like Many Microsoft Layoffs Are Going On Right Now (Forever Layoffs)
Like IBM, Microsoft hopes shareholders will not know of morale and financial problems
More Threats From the Person of Restricted Boot Infamy
Remember this is the man who is the principal purveyor of restricted boot and who landed restricted boot in Linux
Snooping EPO Management, Sniffing Up Every Staff Action
It this a problem for whistleblowers? Of course.
Don't Do That
Options do exist. People should exercise freedom.
Iran Has Debunked GAFAM and Cloud Computing as Safety of Data
Cloud of smoke?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, September 17, 2026
IRC logs for Thursday, September 17, 2026
SLAPP Censorship - Part 188 Out of 200: Used, Then Discarded, by Microsoft (as We Predicted All Along, It's Always Like That)
The longer they carry on with it, the more scandalous this will get
Linux Kernel Becoming a Slopfest - Part 3 - Besieged by LLM Bots, Now Hiding Behind a Wall of JavaScript
The series began 3 days ago
Gemini Links 18/09/2026: Modern Linguistic, Boxing, Turning 40, and Solar MiniServer
Links for the day
Links 17/09/2026: Studio Closures and Negative Rumours About Microsoft XBox Again
Links for the day
What's Wrong with Microsoft's GitHub, New Article by Jacob Bachmeyer and Richard Stallman
licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License
EBay is Going to Die Soon
Users will flee
Red Hat PIPs. The Only Question is, How Many?
Insiders know what's coming soon
This Week The Register MS Published a Page With "AI" 34 Times in It and It Was, as Usual, Paid SPAM!
Does The Register MS understand that it is doing harm to its audience (for temporary gains)?
43rd Anniversary of the GNU Project Announcement
Coming soon
General Assembly (Meeting of All Staff) Starts in Hour Ago to Discuss Strikes at Europe's Second-Largest Institution (EPO), Strikes to Last Until End of 2026 (If Not Further)
The media absolutely does not cover this and that's intentional
SLAPP Censorship - Part 187 Out of 200: Reminding Ourselves of the Great Damage Garrett Did to Linux (for Microsoft)
he rejects freedom
Cancel Culture is a Cancer That Harms Democracy, Justice, and Science. It's Designed to Help Corporations Vanish Their Critics.
"Codes of Conduct" sounds benign; in practice, however, it is not
Links 17/09/2026: Class Action Lawsuit Over GAFAM's "NameTag" and Automattic Hides What It Did to CEO Mullenweg (or Why)
Links for the day
Gemini Links 17/09/2026: Google Signals the End, ROOPHLOCH Coverage, EBay Uses Offensive Bots to Falsely Accuse Users of Stuff
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, September 16, 2026
IRC logs for Wednesday, September 16, 2026