Bonum Certa Men Certa

Positive Signs After Alice: Software Patents Still Invalidated in Bulk, Eastern District of Texas Down for the Count, and Michelle Lee Stays

Michelle K. Lee
Reference: Wikipedia



Summary: An outline of the latest news from the Court of Appeals for the Federal Circuit (CAFC), the Eastern District of Texas (EDTX), and proponents of software patents, who are growing ever more desperate in the wake of Alice

THE death of software patents (in the US) is habitually and even casually being denied by those who have made a lot of money from them, notably law firms.



Clearly, in the patent microcosm's press (like Texas Lawyer in this case), the term "most popular" means popular among trolls and lawyers. Watch this new article titled "EDTX's Rodney Gilstrap Is Still America's Most Popular Patent Judge" (EDTX is the Eastern District of Texas).

"Clearly, in the patent microcosm's press (like Texas Lawyer in this case), the term "most popular" means popular among trolls and lawyers."The article as a whole is behind a paywall, but the summary states: "While patent infringement filings are down both nationally and in Texas according to a recent report, there's still no question who the King of America's patent docket is: U.S. District Judge Rodney Gilstrap of Marshall."

King of the trolls maybe, now that the father of patent trolling is dead. The Eastern District of Texas and Judge Gilstrap are a farce; as we pointed out a few days ago, the Supreme Court should act fast against both, essentially by moving cases out of this "rocket docket" of patent trolls, starving the demand for kangaroo patent courts.

Writing about the latest twist in the Smartflash case, a site that promotes software patents mentioned how the Eastern District of Texas was once again overruled by CAFC. To quote:

The Federal Circuit has reversed Eastern District of Texas Judge Gilstrap’s denial of a post-trial motion for a judgment of patent-ineligibility under 35 U.S.C. €§ 101 of three patents directed to accessing and storing payment data. Smartflash, LLC v. Apple, Inc., No. 2016-1059 (Fed. Cir . March 1, 2017). Chief Judge Prost, writing for a panel that included Judges Newman and Lourie, saved Apple from a jury verdict that claims of U.S. Patent Nos. 7,334,720; 8,118,221; and 8,336,772 were valid and infringed.


The patent microcosm, including the above site, continues to bemoan the death of yet more software patents. Here is one of the latest examples, "Data Back-Up Claims Held Patent-Ineligible under Alice," and to quote:

As a plethora of cases demonstrates, no matter how separate the patent-eligibility is from the question of prior art in practice, the reality is that the analyses go hand-in-hand. So when drafting patent applications think hard about whether you can state a technical solution to a technical problem. And if you can state a technical problem and solution, do it, as clearly as you can.


A District Court meanwhile throws away yet more software patents that have nothing innovative in them. Why did the USPTO grant these in the first place? Watchtroll says that the defendant "argued that both of TAGI’s patents are directed at unpatentable subject matter under 35 U.S.C. Section 101. In response, the court applied the now familiar two-step standard Alice/Mayo test for distinguishing patents claiming abstract ideas and laws of nature."

"...Alice is here to stay and the Supreme Court has taken no other case that can reverse Alice."As usual, they ruled against these patents, as they do in the significant majority of the cases (most of the time) nowadays. Watchtroll, as expected, continues to moan about death of so many software patents (calling the software "revolutionary"), but maybe these people should just move on and get another (real) job, not lobbying for software patents and fooling developers into pursuing patents that are a waste of money.

The funniest headline we have come across? A clickbait headline from boosters software patents, asking "Goodbye Alice?"

Haha, that's a good one. No, Alice is here to stay and the Supreme Court has taken no other case that can reverse Alice. Here is what the article says, citing front group IPO (which has this new IBM-led campaign to shoot down Alice):

A recent proposal by the Intellectual Property Owners Association (IPO) to amend 35 U.S.C. €§ 101 could bring positive change to applicants attempting to acquire patent rights for computer implemented inventions in the US.

The proposal comes after court decisions such as Alice Corp Pty v CLS Bank Int’l (2012) (Alice Corp) blurred the lines between patentability and obviousness, requiring an assessment of the “inventive concept” to be performed when evaluating subject matter eligibility of an application, and resulting in a significant number of computer-related inventions being found invalid for lack of patentable subject matter.


What's wrong with that? It's about time. Ask actual software developers if they ever wanted software patents to begin with. They never did. Now that software patents are ebbing away so do patent trolls, which the Supreme Court might soon throw out of the Eastern District of Texas.

"Now that software patents are ebbing away so do patent trolls, which the Supreme Court might soon throw out of the Eastern District of Texas."Recently, the "Federal Circuit ruled that companies who receive patent demand letters from trolls can’t sue them in their home district," Daniel Nazer wrote for the EFF. One must remember the close correlation between software patents, patent trolls, and the Eastern District of Texas. If even the lower courts sometimes deny the Eastern District of Texas access to everyone's alleged grievances, then we might not even have to wait until TC Heartland. However, to quote Nazer, the Federal Circuit has not exactly been consistent, at least not yet (consistency will likely come after the Supreme Court issues a ruling on TC Heartland, some time later this year):

If a patent troll threatens your company, can you go to your nearest federal court and ask for a ruling that the patent is invalid or that you aren’t infringing it? According to the Federal Circuit (the court that hears all patent appeals), the answer to this question is usually no. The court has a special rule for patent owners that demand letters cannot create jurisdiction. EFF, together with Public Knowledge, recently filed a friend-of-the-court brief asking for this rule to be overturned. But in a decision this week, the Federal Circuit reached the right result for the accused infringer in the case, but left its bad law largely in place.

[...]

Second, in a case called Red Wing Shoe, the Federal Circuit ruled that companies who receive patent demand letters from trolls can’t sue them in their home district to get a determination the patent is invalid or not-infringed. As others have noted, the Federal Circuit has “gone to great lengths to deny jurisdiction over patentees sending demand letters from afar.”


We eagerly await the decision on TC Heartland, we very much welcome CAFC decisions in favour of PTAB findings (a topic to be covered in our next post), we need to guard PTAB from the patent microcosm, and last but not least ensure Michelle Lee keeps her job in spite of a vicious witch-hunt against her [1, 2, 3, 4].

Recent Techrights' Posts

IBM's "Next Step" Program
Apparently close to 1,000 people being laid off by IBM wasn't worth reporting
If GNU/Linux Rising is Just "Bots" (It's Not, Many Surveys Show the Same), Why Does Microsoft Rush to Lie About System Requirements of Vista 11?
The real reason is, GNU/Linux is rising
 
Improving the Static Site Generator (SSG), Fixing Bugs
Next month the site's SSG turns 3
Gemini Links 09/08/2026: Meatballs (1979), Gopher, RSS Experiment
Links for the day
2026: The Year Richard Stallman Came Back to American Campuses
There's more on the way
XBox is Rotting Away, Technical Issues for Second Time in Two Weeks
XBox is dying
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 08, 2026
IRC logs for Saturday, August 08, 2026
Red Hat is in Need of a 'Jolla', as an IBM-Controlled Red Hat is Becoming Like the Microsoft-Infiltrated Nokia
Dying fast, partly by design
Gemini Links 08/08/2026: Gigs, Poems, SREs, and Shared Passion
Links for the day
Kompromat Tactics in GNU and Linux
Kompromat as a concept was covered here in the past in relation to Microsoft
SLAPP Censorship - Part 143 Out of 200: After Nearly 10 Attempts to Settle With Us and Over a Million Pounds Spent on Lawyers and Barristers
We are in no particular hurry
20 Years and 43 Years
GNU/Linux is not just code, it's a philosophy, licence (copyleft), and community
GNU/Linux Turns 43 Next Month, Many Distros Actively Maintained
A lot of Debian-based distros are still actively maintained (we talk about this in IRC this evening), so the stability of the Debian Project is important
Links 08/08/2026: GAFAM Colonialism "Paved Over Protected Wetlands", Slop Companies Hoard Software Patents as Debt Soars to Trillions
Links for the day
Links 08/08/2026: "Palantir Paid No Federal Income Tax" and "Who's Responsible for This Mess?"
Links for the day
Retained: The Time IBM's Red Hat Tried to Hijack or Take Offline Site of Critics, Failed on All Grounds (Meritless Action Intended to Harass Critics)
Replicated from adrforum.com
IBM's 'Final Solution': Censor Sites Not Controlled by IBM, Sites Where Dissent is Expressed
IBM has no culture of free speech
More Mass Layoffs Coming IBM's Way (Ones IBM Cannot Hide, Cannot Convince Enough People to Leave or Unjustifiably PIP Them When They Say No)
The company that was like a "father of modern computing" is now stingy when it comes to travel. Not a good sign.
What Will it Take for Mainstream Media to Report Silent or Secret Layoffs at IBM?
"Silent" or "secret" sometimes because the media won't cover them
Is the Future of IBM Red Hat Temporary Staff, Contractors?
They want cheap, obedient lemmings
Gemini Links 08/08/2026: Tribute to Lloyd Center, Radio Amateurism, Homeworlds
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, August 07, 2026
IRC logs for Friday, August 07, 2026
Microsoft Uses Slop to Find Defects and Then Uses Slop to Replace Code, What Could Go Wrong?
Botspam is the problem, it's not a constructive approach in any shape or form
analytics.usa.gov: GNU/Linux Up Some More This Week
Days ago it said 6.4%, now it's up to 6.8%
RA-pocalypse: IBM Tells Workers "Taking a Hike" is Their "Next Step" ('Voluntary' Layoffs), Now It Prepares to Sack Lots of Contractors
There definitely is something going on
Legal Attacks on Techrights Have Made Techrights More Popular and More Widely Read
The misogynists will have plenty of work to do this summer
Kai Stephens (Barkley Walsh) & British Democrats in Clacton by-election hustings
Reprinted with permission from Daniel Pocock
Daniel Pocock 'Punching' Nazis in the UK
The so-called "cult" of so-called "Debianism" was left with nothing but massive legal bills
SLAPP Censorship - Part 142 Out of 200: GemText is Not a Webpage, Gemini Protocol is Not the Web, and Capsules Are Not Websites
our intention to appeal (escalate to the Court of Appeal)
Microsoft: Our August 2026 Layoffs Are Not Layoffs Because... Reasons
That's like IBM making "spin-offs", then pretending that no layoffs are happening
Links 07/08/2026: UMG and Anthropic in Trouble Over Copyright Infringements Sold as "Training" (Slop)
Links for the day
Links 07/08/2026: "BMW Is Showing Commercials On Their Car's Dash Screens And They Want You To Think It's A Treat", Software Patents on Drones
Links for the day
What We Said About Red Hat's Fate Under IBM Turned Out to be Right on the Money (That IBM Lacks)
There are no layoffs at IBM
IRC Networks Show No Signs of Going Away, IRC Enters Its 39th Year
That IRC daemons are still actively developed and patched in summer of 2026 (over 38 years after IRC was born) says a lot about IRC's importance
Social [Control] Media Needs to Die
I am a bit shocked to recall that I wasted a lot of time on it
Some Malware is Legal Because It's Made and Distributed by Politically-Connected GAFAM
In reality, the security non-experts 'championed' (and salaried) by GAFAM are anti-security people who advocate back doors
The GNU/Linux Anniversary is Next Month, Not This Month
It'll turn 43
At Clacton by-election Hustings Event Daniel Pocock Says "Social [Control] Media Has Contributed to Some of the Anti Social Behaviour."
No doubt many problems in society are caused or at least amplified/accentuated by this horrible phenomenon
IBM Insiders Explain Why IBM is in Very Serious Trouble
Will IBM last long enough for any "quantum" deliverables to become a reality?
The Register MS Took Money From Broadcom to Publish Fake 'News' With "AI" Mentioned 35 Times
not legitimate or authentic journalism.
GNU/Linux Approaching 20% in Georgia (the Country)
Usage of GNU/Linux was near 0%, as measured by statCounter, several years ago
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, August 06, 2026
IRC logs for Thursday, August 06, 2026
Gemini Links 07/08/2026: Radio Amateurism, Summer Updates, and Programming "Taste"
Links for the day