Bonum Certa Men Certa

The Patent Microcosm is Pushing Hard to Weaken Alice and Revoke PTAB's Authority Using an Upcoming Supreme Court Case

Dennis Crouch preaching to the choir again...

Dennis Crouch at the University of Houston Law Center Photo credit: University of Houston Law Center



Summary: Patent profiteers (not inventors) continue their shameful campaign against Alice and PTAB now that software patents are in shambles and many get invalidated without them being used litigiously

THE USPTO has been subjected to PTAB's scrutiny for just over half a decade. This has helped a lot. Many bogus patents got invalidated. Frivolous lawsuits were prevented.



As we have been showing here several times earlier this summer, publicity stunts, personal attacks etc. have been used by the patent microcosm in an effort to shut down PTAB. They'll never stop trying. These people also try to water down ۤ 101/Alice. As mentioned here during the weekend, CAFC issued a ruling about a case regarding hardware, yet several law firms tried to paint it as pertaining to Alice and CCIA's Josh Landau has just responded as follows:

Last week, the Federal Circuit handed down a decision in Visual Memory v. NVIDIA, deciding that the Visual Memory cache patents are patent-eligible under ۤ 101.

Unfortunately, in doing so the Federal Circuit makes the same mistake they’ve made a few times now—they’ve looked at the specification, not the claims, in order to justify finding eligibility. The problem with that?

[...]

This isn’t the first case that has read into the specification in order to find claims patent-eligible. Last year, in the Amdocs v. Openet case, a similar decision was made—claims were found to be patent-eligible based on aspects of the patent only described in the specification, aspects that were completely absent from the claim language. The majority admitted that the claims were directed to an abstract idea, but said they contained an “inventive concept” sufficient to make the claim patent-eligible.

In Amdocs, the key to eligibility (according to the court, at any rate) was the “distributed” nature of the patent. The problem with that, as identified in Judge Reyna’s dissent, is that the majority “relies on the specification to import innovative limitations into the claims at issue” because the claims at issue are entirely lacking in that limitation.

Again, we see the same pattern: claims entirely lacking any inventive concept, saved by the importation of ideas from the specification.


Moreover (not mentioned above), the patent wasn't quite on software. We wrote about this some days ago. To pretend that this decision somehow legitimises software patents would require incredible levels of dishonesty. Here is what Managing IP wrote about it yesterday. Notice the headline. When they say "hope" they reveal their bias. Software patents propagandists is what they boil down to and considering their source of income it's easy to understand why. They're merely a front of patent law firms. From the article:

The Federal Circuit in its August 15 opinion in Visual Memory, LLC v NVIDIA Corp upheld patent claims directed to a computer memory system as patent eligible under the Supreme Court test set out in Alice v CLS Bank - a departure from its tendency to strike down such patents in recent years


But this is not a software patent and not everything that's judged by Alice is patent-ineligible. Obviously! Expect patent maximalists to continue to twist this decision in order to pretend CAFC has just 'blessed' such patents.

When the US Supreme Court (SCOTUS) took on Alice it did not seek to overturn every outcome or invalidate all patents but merely to limit their scope (as it did).

PTAB will soon be the subject of consideration at SCOTUS (Oil States) and the patent microcosm is already attempting to influence the outcome. As usual, PTAB foe Dennis Crouch tries to paint the opposition to PTAB as scholarly/academic.

Yes, Mr. Crouch at Patently-O is already lobbying SCOTUS pretty hard against PTAB. He writes about this almost every day, citing other academics like Lemley's "Why Do Juries Decide If Patents Are Valid?" (from 2013!)

These people (like Crouch, not Lemley) try to salvage bogus patents and software patents. They view themselves as self-appointed heroes of an 'industry' of trolls and litigators. Crouch focuses on revocation by juries, but the general public (jury) barely understands patents; it's just brainwashed by lawyers/liars and is therefore unfit to decide on such cases.

Days ago Dennis Crouch wrote about the history of patent revocation, going back more than two centurie and stating: "The last revocation in this manner was 1779 on an issue of national security. There are, however, no records of any petitions filed after 1780 and contemporary writing suggest that the revocation process moved entirely to scire facias. The brief suggests that, if it were available, parties would have continued to push through the Privy Counsel because scire facias was so expensive and complicated."

This plays into the narrative that revocation has no legitimacy because it was last really done (routinely) a very long time ago. Crouch was soon digging even deeper with this narrative. He's still trying to find out how to stop patents being invalidated (because they're of low quality). This is what he wrote:

In my view, a potential critical historical question in Oil States is whether the English Privy Council was empowered to revoke patents back in 1791.

For many years leading up to its last cancellation action in 1779, the Privy Council operated as a kind of administrative body empowered to revoke or void issued patent rights on signature of a sufficient number of Privy Council members. If the Privy Council was empowered in the 1790s to cancel issued patents without judge or jury, that suggests that – in today’s world of expanded administrative power – Congress can also empower a the PTO to cancel issued patents. Some folks may reflect that – although Old English Law matters for the Seventh Amendment jury trial issue, it is much less critical for the administrative law question. Others will also argue that the Privy Council approach was entirely rejected by Americans when we rejected the notion of American Royalty. I’ll slide by these points for this point and instead look at uncovering some Privy Council history.

[...]

The historical record is thus starting to suggest that, although the Privy Council took no action to cancel patents after 1779, it may have been empowered to do so throughout the 18th and 19th Centuries. At this point, I don’t have any further take-away conclusions and would be receptive to comments and guidance.


We expect Crouch to carry on with this nonsense for months to come; not only do they try to water down ۤ 101 but also abolish the facility for enforcing ۤ 101. It's all about patent maximalism.

Recent Techrights' Posts

Windows in Åland Islands: From 100% to Less Than Half
Åland Islands lost the sense of urgency to move to GNU/Linux
Not Just Slow News But Also Late News (Julian Assange Landing in Thailand)
Why did AP take so long (nearly a week) to release these?
[Meme] Smart Alec Poettering
How many Microsofters can the Debian Project withstand?
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
 
200 This Week
Monday started with 40 articles/pages and this is #200
Press Complicity and Public Apathy All Along Enabled 14 Years of Illegal, Arbitrary Detention and Coercion Into Plea Bargain of Julian Assange on Brink of Death
They basically blackmailed him into letting the US 'win' the argument
At the End Journalism a Crime (If It Involves Accessing or Gaining Access to Documents Marked "Confidential" or "Classified" by Those Looking to Hide Their Misconduct/Crimes)
At least in the US, especially where the imperialism is at stake
Links 30/06/2024: Tensions in Korea and Japan, Criminalisation of Sleeping Outdoors
Links for the day
100% Slop/Spam From linuxsecurity.com
This is the kind of stuff that's killing the Web faster
Gemini Links 30/06/2024: Murdoch and Ideal OS
Links for the day
In the First 6 Months of 2024 Thailand Moved to GNU/Linux, Not to Windows Vista 11
maybe users moved from Vista 10 and 11 to GNU/Linux, seeing where Microsoft was heading with forced hardware "upgrades"
Eko K. A. Owen, New Outreach and Communications Coordinator for the FSF
Nice to see many new additions to the FSF's team
Microsoft Has Slaves and Enablers, Not Partners
Obligatory meme too
Tobias Platen Covered Freedom-To-Play Games in LibrePlanet 2024
Freedom-To-Play games using Taler
[Meme] Opening a 'Webapp' With 'Only' 4 GB of RAM
Until 2020 none of my PCs ever had more than 2 GB of RAM
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock