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

What the End of Journalism Looks Like
All on the same day
Links 01/03/2024: Microsoft 'Retiring' More Services and Raspberry Pi Celebrates 3rd Birthday (Launched on February 29th, 2012)
Links for the day
Women's Empowerment
Sponsored by Bill Gates
Gemini Links 01/03/2024: Speed Bumps and Analog Stuff
Links for the day
[Meme] Those Greedy EPO Examiners
Says the litigation industry, charging 300 euros an hour per attorney
EPO Discriminates Against Families of Its Own Workers, the Union Explains Legal Basis Upon Which It's Likely Illegal and Must be Challenged
To the Council, the EPO boasts about its wealth (seeking to impress by how much breaking the law "pays off")
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, February 29, 2024
IRC logs for Thursday, February 29, 2024
Links 01/03/2024: Misuse of Surveillance Against UK-Based Journalism, EPO Conflict Now in the Media
Links for the day
Taking a Break From Paid Promotion of the Illegal, Unconstitutional Kangaroo Court for Patents (UPC)
JUVE returns to its 'roots'?
FSFE admits losing funds from bequest by insulting and ignoring Fellowship representative
Reprinted with permission from Daniel Pocock
Gemini Links 29/02/2024: Raspberry Pi Incus Cluster and Aya 0.5.0 Coming Soon
Links for the day
Links 29/02/2024: Layoffs at Apple, Expedia, and Electronic Arts
Links for the day
Gemini Links 29/02/2024: Web Enshittification and Firefox user-agents
Links for the day
Spiked Piece/Censoreed Piece: 'Microsoft Copilot is a gimmick', says top CIO
Issues relate to connectivity and cost
Enrico Zini, Mattia Rizzolo, Plagiarism & Debian
Reprinted with permission from Daniel Pocock
[Meme] Clergy of GNU/Linux (Corporations Like IBM)
Volunteers as powerless "followers" of companies that "harvest" their labour
There Will Be Lots More Apple Layoffs (Already Years in the Making)
The corporate media still tries to shape the narrative to prevent panic or delay market hysteria
Latest SUEPO (Staff Union of EPO) Report For The Hague Reveals EPO Does Not Obey Court Orders, Refuses to Allow Workers to Freely Talk to One Another
working in a place where communication itself is restricted
[Meme] The Oppression Will Continue Until EPO 'Quality' Improves
wonder why EPO morale is so low?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 28, 2024
IRC logs for Wednesday, February 28, 2024
Outreachy, GSoC-mentors & Debian-Private may soon become public records in federal court
Reprinted with permission from Daniel Pocock
Links 28/02/2024: Many War Updates and Censorship
Links for the day
Gemini Links 28/02/2024: Social Control Media Notifications and Gemini Protocol Extended
Links for the day
Links 28/02/2024: Microsoft the Plagiarist is Projecting, Food Sector Adopts Surge Pricing
Links for the day
Helping Microsoft 'Hijack' Developers (to Make Them Work for Microsoft, Not the Competition)
VS Code is proprietary spyware of Microsoft. Jack Wallen keeps promoting its use.
Gemini Links 28/02/2024: Groupthink and the 'Problem' With Linux
Links for the day
Android Rising (Windows Down to All-Time Lows, Internationally)
This month was a bloodbath for Microsoft
HexChat Looks for Successors to Keep IRC Growing
IRC is far from dead
[Meme] Just Make Him Happy
Y U no produce more monopolies?
End of a Long February
top 10 posts
[Meme] The EPO's Relationship With Patent Examiners
Nobody is "safe"
New Pension Scheme (NPS) at the European Patent Office Explained at the General Assembly
Investing in the future, or...
Donald Trump & FSFE Matthias Kirschner election denial
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 27, 2024
IRC logs for Tuesday, February 27, 2024