Bonum Certa Men Certa

A High US Court (CAFC) Continues Rejecting Software Patents (Even of Microsoft's Patent Trolls)

Microsoft too has trouble in that court, but will Microsoft change its course?

Sharon ProstSummary: Under Chief Judge Sharon Prost (who took over after the corrupt Randall Ray Rader had been pushed out 3 years ago) CAFC has become the opposite of what it used to be, at least when it comes to patents

THE Court of Appeals for the Federal Circuit (CAFC) is where software patents were born. Nowadays, in spectacular and sharp contrast, CAFC is where many software patents come to die (for good). Things have certainly not been the same since Alice.



"Things have certainly not been the same since Alice."Firms that profit from software patents are not happy about this. Some are attacking CAFC judges, whereas others are more polite. Fox Rothschild LLP, for example, was promoting software patents a few days ago and it was pressuring CAFC to allow software patents in defiance of the Supreme Court. It's yet another one of those thousands of rants about Alice and decisions which cite Alice. Here is the original, which was cross-posted (probably for a payment) and said: "In the past year, several Federal Circuit decisions defined situations in which software inventions could be eligible for patenting in the United States. However, two recent Federal Circuit decisions show that the path for patent-eligibility is not yet clear, especially for patents that claim methods of processing or presenting data."

"They'll just carry on asking for the contrary stance/more "clarity", as if the Justices got it all wrong and need to be lectured by the patent 'industry'."This has in it the false assumption that some software patents should be allowed. Or that it all boils down to "clarity". So far this year CAFC has rejected software patents almost all the time. Why don't they just get a clue? The Justices were clear enough about abstract patents, but patent extremists refuse to understand (or pretend not to). They'll just carry on asking for the contrary stance/more "clarity", as if the Justices got it all wrong and need to be lectured by the patent 'industry'.

From Fox Rothschild's conclusion: "The Federal Circuit’s case-specific, and sometimes inconsistent, interpretations of Alice leave software patent applicants, patent litigants, and USPTO Examiners with even less definitive guidance as to the patent-eligibility of software inventions than they had a few weeks ago. And with the Supreme Court’s recent decision to deny certiorari in a case that asked “Whether [a] technological breakthrough is not an inventive concept under the second step of Alice merely because the court believed the breakthrough could theoretically be implemented without a computer,” clarification from a higher authority is not likely on the horizon."

"Seeing the sorts of abuse from the patent microcosm is a testament to its misery and agony."There's no need for "clarification"; what's needed is amendment of USPTO guidelines to altogether end software patents -- something which is rumoured to be work in progress.

Seeing the sorts of abuse from the patent microcosm is a testament to its misery and agony. These people refuse to accept reality. One of them portrayed CAFC as a killer with threats, with words like these: "RecogniCorp's Petition for Cert Re Patent Kill under Alice Threatening Validity of Much if not All Computer Tech: https://dlbjbjzgnk95t.cloudfront.net/0980000/980981/2017-11-01%20petition%20for%20writ%20of%20certiorari%20-%20recoginicorp%20v.%20nintendo.pdf …"

"Microsoft's biggest patent troll (IV) is repeatedly finding out that its large arsenal can be trivially invalidated."There is another case involving Intellectual Ventures (IV), which has had many of its patents found to be invalid under Alice. Here is that word "Kill" again, as in: "Fed. Cir. Affirmed a 12(b)6 Alice Kill of an IV Patent: cafc.uscourts.gov/sites/default/… https://t.co/iNyNZR2POL"

Then came another patent maximalist, stating that the "Federal circuit now wants in on the game of invalidating patents without much work, 101 is just such a convenient, tempting tool https://twitter.com/patentbuddy/status/926482154598608901 …"

Well, it's the law. De facto law.

The above invalidation has since then been covered by Law 360. Microsoft's biggest patent troll (IV) is repeatedly finding out that its large arsenal can be trivially invalidated. According to the following, this troll has now amassed over 70,000 patents:

The Federal Circuit affirmed Friday a lower court ruling that found an Intellectual Ventures patent on screening for “errant” computer files was invalid under the U.S. Supreme Court’s Alice ruling, agreeing that the company failed to show that the patent’s claims were not abstract.

Intellectual Ventures, a major patent licensing company that owns more than 70,000 patents, accused Erie Indemnity Co. and other insurers of infringing four patents through their databases and other software.


As can be expected from Patently-O, there's now some more CAFC bashing. Judges rather than laws are being scrutinised. They're being criticised for knocking out software patents (the Two-Way Media case):

The Federal Circuit’s decision in Two-Way Media is in some amount of tension with the court’s 2016 decision in Amdocs v. Openet Telecom. In Amdocs, the court noted that the claims appeared problematic under Section 101 (abstract ideas), but that the architecture – as specifically described in the specification but more generically claimed – showed that the invention was actually a technological improvement.



Attempts to use Alice to throw out patents (also Two-Way Media) were also covered in another post from Patently-O. For background: "Two-Way sued Comcast (and others) for infringement. However, the district court granted the defendant’s motion for judgment on the pleadings – holding that the claims were invalid as ineligible under 35 U.S.C. Section 101 as interpreted by the Supreme Court in Alice and Mayo. In that process, the district court refused to consider evidence of the patents’ novelty and nonobviousness – holding that such evidence would be irrelevant to a Section 101 inquiry. [...] Note here that the court seemingly offered a road-map for the patentee — a technological arts test — noting that the specifications appear to describe a “system architecture as a technological innovation” but “the claim—as opposed to something purportedly described in the specification—is missing an inventive concept.”"

"They've long attempted to change the debate and warp examination using words alone."Haug Partners LLP's Jon Gordon, writing for IAM (the patent trolls' lobby), says that CAFC already clarifies when/where software patents are banned. To quote: "Patents directed to software-implemented inventions commonly describe and claim the invention in terms of the inventive idea and this disclosure suffices to enable persons skilled in the computer arts to practise the idea. [...] principles are indeed emerging and they show the beginnings of the path to patentability for software-implemented inventions."

The term "software-implemented inventions" seems new; it's like a combination of software patents and CII (computer-implemented inventions) and these are mostly syntactic/semantic tricks. They've long attempted to change the debate and warp examination using words alone. But code is still code, no matter what people call it (code is not an "invention" though, it's development like that of a building or sculpting).

"Microsoft along with its trolls carry on leveraging software patents -- typically behind closed doors -- to demand 'protection' money."These people try hard to study ways of fooling examiners and getting patents past judges as well. Patently-O has taken stock of popular CAFC cases and later recalled MasterMine v Microsoft.

MasterMine v Microsoft was mentioned here back in the summer and again last week when the case suddenly resurfaced. CAFC gave some new life to it and Patently-O then said that "the decision here continues the Federal Circuit’s implicit rejection of the Supreme Court’s Nautilus decision."

"What remains noteworthy, all in all, is CAFC's intolerance of software patents. What's also noteworthy is the patent microcosm's intolerance of CAFC."Well, Microsoft ought to fight against software patents, but this case won't be enough to convince it. Microsoft along with its trolls carry on leveraging software patents -- typically behind closed doors -- to demand 'protection' money. Here is what WIPR wrote about this latest twist:

The US Court of Appeals for the Federal Circuit has reignited a patent battle between multinational Microsoft and software company MasterMine Software.

Yesterday, October 30, the Federal Circuit affirmed a lower court’s claim construction of two data-mining patents owned by MasterMine, but reversed the court’s determination that they were indefinite and remanded the case.

In 2013, MasterMine sued Microsoft for infringement of two related patents, US patent numbers 7,945,850 and 8,429,518, at the US District Court for the District of Minnesota.


What remains noteworthy, all in all, is CAFC's intolerance of software patents. What's also noteworthy is the patent microcosm's intolerance of CAFC. It's probably worth commending CAFC for what it is doing, reminding the judges that the real industry (i.e. not mere litigators) support its recent judgments. Its older judgments have been repeatedly overturned by the Supreme Court, so perhaps it's learning to adapt to this new reality.

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