Bonum Certa Men Certa

Alice Remains a Strong Precedential Decision and the Media Has Turned Against Software Patents

Judge Paul Redmond MichelPublishers too, after all, have come under attacks from software patents (which retired Judge Paul Redmond Michel, shown to the left, continues to defend, even in his retirement)

Summary: The momentum against the scourge of software patents and the desperation among patent 'professionals' (people who don't create/develop/invent) is growing

TWELVE years ago Europe decided on a ban/policy against software patents. 3.5 years ago something similar happened in the United States, owing largely to a panel of judges (Justices) whose decisions in recent years -- on patents at least -- we are thoroughly pleased with. Alice is, to us, a blessing. It's something we have been striving for since inception. We therefore need to guard Alice, shielding it from the constant barrage that's almost always yielded by the patent microcosm, i.e. people who do nothing but patents (handling of patents, not actual invention).



Mainstream Media Against Software Patents



"Alice is, to us, a blessing. It's something we have been striving for since inception."A couple of days ago the New York Times said regarding "subsidies for the financial sector's risk-taking" that it's wrong, as well as "overprotection of software and pharmaceutical patents" (the article is about "Myths of the 1 Percent: What Puts People at the Top"). It's very good to see that even the so-called journal of record highlights the problem with software patents. Another site, Biotech Blog, said a few days ago that "[i]n some industries (e.g. software), patents are often seen as a nuisance."

Rightly so. Software patents must be banned universally if the will of actual software developers is to be honoured.

"Software patents must be banned universally if the will of actual software developers is to be honoured.""This is not a matter of software patents," said another mainstream site last week. "This is a matter of a monopoly."

They speak about “The Frightful Five” -- a term which alludes to Alphabet-Google, Amazon, Apple, Facebook, and Microsoft.

Lawyers Learning to Accept That Software Patents Are Kaput



The lawyers' media too is coming to grips with Alice. A couple of years ago these sites still pretended that Alice was a temporary "issue" to be overcome, but now they've found the integrity/honesty/morals/courage to treat Alice as de facto law. In Two-Way Media, for example (mentioned earlier this month), Alice was once again reaffirmed by the Federal judges (one level below the Supreme Court) and it's a precedential decision. The National Law Review said this:

In issuing its precedential decision earlier this month in Two-Way Media v. Comcast, the Federal Circuit affirmed a Delaware district court determination that four data streaming patents were directed to ineligible subject matter pursuant to ۤ 101 and the Alice framework. The four related patents (U.S. Patent Nos. 5,778,187, 5,983,005, 6,434,622, and 7,266,686) describe methods and systems for streaming audio/visual data over a communications system (e.g., the Internet) and, in particular, a scalable architecture for delivering real-time information to a number of users, including a control mechanism allowing for management and administration of users intended to receive the real-time information.


Excellent!

ۤ 101/Alice has also invalidated some more software patents in Smart Systems Innovations (patent troll), as noted a few days ago in Lexology (another pro-software patents platform). To quote:

Recently however, the Federal Circuit dealt Smart Systems a major setback in Smart Systems Innovations, LLC v. Chicago Transit Authority, 873 F.3d 1364 (Fed. Cir. 2017). In this case, Smart Systems alleged that the Chicago Transit Authority (CTA) infringed four of Smart Systems' patents. CTA moved for judgment on the pleadings, arguing that the patents' claims were ineligible under ۤ 101 because they were directed at abstract ideas. See Alice Corp. v. CLS Bank Int'l, 134 S. Ct. 2347 (2014). Smart Systems responded by arguing that the patents sped up processing at turnstiles, i.e. the claims were patentable because they improved a process.

Under Alice, courts must use the following two part test when analyzing a claim's patent eligibility under 35 U.S.C. ۤ 101: (i) is the claim directed to an abstract idea, and if so, (ii) are there any claim limitations or combination of claim limitations that constitute an inventive concept? The post-Alice cases in the Federal Circuit are not the picture of clarity, and there remains a great deal of uncertainty regarding what is a patent-ineligible abstract idea. It is, however, generally understood that claiming a general-purpose computer that performs an abstract processes will be directed to an abstract idea, whereas improvements to a computer or technological process will not.


It must be tough for patent lawyers. It is going to get tougher for them to honestly advise clients to pursue patents on software. The climate has changed profoundly. All they can offer clients is a bunch of tactics for dodging ۤ 101/Alice at the examination phase, i.e. before a thorough test of claims is undertaken. To quote from the above: "This case underscores the importance of careful claim drafting for software-related patents. Prosecution counsel should be careful to adequately describe how particular solutions are achieved, not just recite the solutions."

"It must be tough for patent lawyers. It is going to get tougher for them to honestly advise clients to pursue patents on software."But still, that may not help fully fool the judges. The plaintiff would be confronted by expert witnesses who can see past the buzzwords and weasel words. Software patents are just software patents, no matter the framing/posting/casting.

Another new article, this one from Christopher M. DiLeo and Derek M. Abeyta, speaks in support of patent trolls and offers tips for dodging Alice towards the end: [via]

On October 16, 2017, the Federal Circuit affirmed the district court’s ruling that the claims in Secured Mail Solutions LLC, v. Universal Wilde, Inc. (“Secured Mail”) were directed to patent-ineligible subject matter under 35 U.S.C. €§ 101. This ruling provides another data point as to what level of concreteness and specificity courts should consider when analyzing patent-eligibility questions under €§ 101.

[...]

This decision reminds applicants that claims can be found patent-ineligible at the motion to dismiss stage based solely on intrinsic evidence gathered from the written description. Secured Mail at 13. At this time, the courts do not seem willing to engage in any formal claim construction and the court can “simply conclude[] from the claims that they [are] directed to patent-ineligible subject matter.” Id. at 13. Applicants concerned with €§ 101 challenges should consider articulating technical details in the specification as courts seem willing to make an eligibility determination early in litigation with little, if any, evidence beyond the issued patent.

When preparing a patent application, it may be desirable to ensure that the claims provide sufficient details that can demonstrate what is inventive about the individual claim elements or the processes involving those elements. The claims should also include details that can be traced to further descriptive text included in the body of the application. Including these in the specification can support the ways that the claim elements recited are more than generic processes that are simply being applied or implemented by generic hardware. Patent eligibility can be bolstered by focusing claims on a specific means or method and claiming specifically how those means improve computer functionality, rather than simply an existing process that could, in theory, be performed without computer implementation entirely. Consider including special rules or details within the claim limitations to further ground the claimed features.


Notice the tone. All they can do now is suggest ways of getting around the law/rules. What does that say about them?

IAM a Megaphone to ۤ 101 and AIA Bashers



Suffice to say (and as we shall show later tonight), IAM cannot keep its mouth shut about the Supremes/ۤ 101/Alice -- something which IAM apparently views as an abomination because of the target audience. Litigation professionals bemoan barriers to litigation (ۤ 101 in this case) and IAM says that Bristol Myers Squibb's Henry Hadad claims Section "101 reform clearly needs to be addressed by Congress, not going to be done by the courts" (they try to bypass the law and simply lobby/bribe officials).

"There's a malicious lobby which tries hard to undermine the Supreme Court's decision. This lobby is funded by the "usual suspects"."IAM also wrote about former CAFC Chief Paul Michel (another maximalist* like Randall Ray Rader, who succeeded him) that he had said something to the effect of: "If you ask members of Congress and their staffers what they think about patents they r going to tell u 3 myths - most patents r invalid, most lawsuits r abusive and most patent owners asserting patents who are not practising them r abusers..."

These are NOT myths, that's just the truth and it's hard for patent maximalists to accept that. We'll say more about Michel and the context of these remarks later on. There's a malicious lobby which tries hard to undermine the Supreme Court's decision. This lobby is funded by the "usual suspects". _____ * He even writes for patent extremists' sites like Watchtroll and Patently-O (less radical than Watchtroll).

Recent Techrights' Posts

linuxsecurity.com Still At It! 98% Probability Chatbot Generated, According to GPTZero!
"The Internet is mostly made by AI... but that's ok, it's all being deleted anyway."
 
Ireland Exits Microsoft's Vista 11
Microsoft can't be doing too well in Ireland because Microsoft had tons of layoffs in that country last year
A Recognition for Hard Work
Running this site is a lot of work
The Web We Lost...
Vintage War Censorship Poster...
Daniel Pocock (IND) in European Election Debate
In this segment he speaks of the effects of social control media and phones on children
[Meme] Next Target: Sub Domains
Deb.Ian.Community
The "D" in Debian Stands for Dictatorship That Extents to Censorship at DNS Level
Of course the registrar, which charged for domains until 2025, just went along with it
In Republic of (South) Korea, as of This Month, Android Climbs to Record High of 48%
Judging by statCounter anyway
"Linux" is Second-Class Citizen at IBM
sends the wrong message to Red Hat staff and Red Hat clients
Links 24/05/2024: More Software Patents Invalidated (US), New Fights to Protect Free Speech
Links for the day
"You Touched the Wrong Lady"
What Rianne wrote more than 8 months ago
Links 24/05/2024: Layoffs at LinkedIn and Election Interference Via Social Control Media
Links for the day
Getting a 'Thank You' From Software Freedom Conservancy (SFC) Will Cost You $5,000 to $30,000 (Same as Last Year)
Right now one of their associates (SFC) tries to spend money to censor us
KDE Neon Weirdness
Reprinted with permission from Ryan Farmer
Congratulations to Sirius Open Source, Still Claiming to Employ People Who Left Half a Decade Ago (or More!)
What signal does that send to con men?
[Meme] Bluewashing
Cent OS? No more.
IRC Proceedings: Thursday, May 23, 2024
IRC logs for Thursday, May 23, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Tenfold Increase for ChromeOS+GNU/Linux in Brunei
Brunei Darussalam is a country most people don't know about and never even heard about
Coming Soon: Another Round of 'Cancel Stallman' Chorus
The series required a great deal of patience
Links 23/05/2024: SeekOut Collapsing and Why Microsoft Probably Isn’t Going to Buy Valve
Links for the day
Gemini Links 23/05/2024: The Allure of Vinyl
Links for the day
Links 23/05/2024: Apple Responds to Streaming Music Fine, DOJ to Sue Live Nation
Links for the day
Links 23/05/2024: UK General Election and Archival
Links for the day
[Video] 3 Major Issues in Nationwide, Including (Potentially) a Major Data Breach
'electronic-bank' security has become the joke of the town
[Meme] Pointing Out Corruption Isn't a "Hate Crime"
The European Commission's reflexive (re)action to any sort of doubt or criticism
More Evidence in "iLearn AI Day" (a Buzzwords Festival) That EPO Intends to Eliminate Staff and Deviate Further Away from Fairness, Law, and Constitutions (Including Its Own!)
The EPO is a very potent danger to Europe's unity and the very concept of lawfulness. It exists to serve international monopolists and patent lawyers.
Microsoft's Windows Has Fallen Below 3% in Democratic Republic of the Congo (100+ Million Citizens)
Microsoft's sharp fall in Congo
The Real Reason Censorship is Attempted Against Us (and Against Others Too)
Microsoft's Windows market monopoly was in trouble
You Are Not The Only One
Reprinted with permission from Cyber Show (C|S)
GNU/Linux in Monaco: From 0.3% to Almost 6%
Monaco is a small country
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 22, 2024
IRC logs for Wednesday, May 22, 2024
Microsoft Has Lost Cote D'ivoire (Ivory Coast), Where Android Now Exceeds 60% of the Operating Systems' 'Market Share'
According to statCounter anyway
The Rumour Said Later Today Red Hat (IBM) Might Announce Layoffs
Let's see what happens later today (or next week)
Governments That Fail Journalism
Australia is known for giving us pure garbage like Rupert Murdoch
Windows Has Fallen From 'Grace'
When you tell people that Microsoft watches their every move in Windows many of them will freak out and ask for alternatives
Serbia: GNU/Linux at Almost 4% (or Beyond if ChromeOS is Counted)
considerable growth for GNU/Linux
Links 22/05/2024: China in Other Countries' Islands, Growing Threat of Piracy
Links for the day
Gemini Links 22/05/2024: Freedom Through Limitation, Cloud Photos
Links for the day
Canonical Supports Monopoly
more of the same
A farewell to Finland, an occupied territory
Finland, Finland, Finland
Links 22/05/2024: "Copilot+" as Mass Surveillance and Microsoft Defying Consent in Scarlett Johansson's Case
Links for the day
[Meme] Escalating After Failures
4 stages of cancel culture
Red Hat Had 2+ Days to Deny Reports of Impending Layoffs. But Red Hat Chose to Keep Silent.
Red Hat DOES NOT deny layoffs on the way
Microsoft-Connected Person Was Threatening to Sue Me and to Sue My Wife (Because His Feelings Were Hurt After Had He Spent More Than a Decade Defaming Me and Violating My Family's Dignity, Privacy)
litigation was chosen and we shall defend everything we wrote
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 21, 2024
IRC logs for Tuesday, May 21, 2024
Attempts to Sink the Free Software Movement (Under the Guise of Saving It)
We can see who's being drowned
Czech Republic: Windows Down From 98% to 43%, GNU/Linux Rises to Over 3%
modest gains for GNU/Linux
Links 22/05/2024: Pixar Layoffs and More Speculation About Microsoft Shutdowns/Layoffs (Ninja Theory)
Links for the day
Microsoft-Connected Sites Trying to Shift Attention Away From Microsoft's Megabreach Only Days Before Important If Not Unprecedented Grilling by the US Government?
Why does the mainstream media not entertain the possibility a lot of these talking points are directed out of Redmond?