Bonum Certa Men Certa

Patent Troll Finjan Manages to Defend a Patent (on Appeal) and the Trolls' Lobby is Loving It

Todd M. HughesSummary: Blue Coat (now owned by Symantec) has attempted -- and failed -- to invalidate all of Finjan's patents using Section 101/Alice; those who are in the business of trolling view that as particularly good news because the judgment came from Timothy Dyk and Todd Hughes (much younger and appointed a few years ago)

THE USPTO had granted software patents far too easily before Alice, so in recent years we saw a lot of patent trolling from the likes of Finjan (such trolling is drying up over time, owing to courts' decisions which repel further action).



The high-profile patent trolls and their supporters were glad to see that, for a change, after a case reached the Court of Appeals for the Federal Circuit (CAFC) the troll got its way. To give one example: "Finjan v Blue Coat Federal Circuit 1/10/18 reverses-in-part because as to 1 of 4 patents, patentee "failed to apportion damages to the infringing functionality"; court also agrees with def that "$8-per-user royalty rate was unsupported by substantial evidence."

"Just because Alice isn't applicable in certain cases doesn't mean much; sometimes that is just the case."Another one wrote: "The patentable subject matter ruling is interesting, and also because the opinion was authored by Judge Dyk, and joined by Judge Hughes, both of whom have a pronounced history of finding claims ineligible."

Another proponent of trolls called them "anti-patent jurists" (as if being selective or expecting high quality makes one "anti-patent"). "But didn't Dyk and Hughes," he said, "two of the most anti-patent jurists on the Federal Circuit decide that at least some claims were patent eligible under 101?"

"Turns out that this decision is likely to be cited a lot in the future."They try to personify it... at least they don't resort to sexual orientation slant like corporate media does [1, 2].

Just because Alice isn't applicable in certain cases doesn't mean much; sometimes that is just the case. "Section 101" isn't always a winning argument, obviously...

Media of the patent microcosm covered this 3 days ago. It said:

The U.S. Court of Appeals for the Federal Circuit on Wednesday upset a $39.5 million award in long-running patent litigation between Finjan Inc. and Blue Coat Systems Inc., causing a San Jose federal judge to throw the brakes on another ongoing trial between the cybersecurity rivals.


Turns out that this decision is likely to be cited a lot in the future. "Finjan v Blue Coat Syst (Fed. Cir. 2018) PRECEDENTIAL," said the above person. "Claims Directed to Computer Virus Detection Held Patent Eligible under 101; Other Issues in Decision: http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-2520.Opinion.1-8-2018.1.PDF …"

"Finjan sued the enabler of the EPO's police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents."We don't have much sympathy for Blue Coat in particular; what we see here one evil firm against another evil company (the latter at least makes and sells something). Finjan sued the enabler of the EPO's police state (surveillance and censorship), but we ought to leave that aspect aside in the context of patents.

Nicole R. Townes and Daniel Kiang from Knobbe Martens took the time to write about it. "After a bench trial," they said, "the district court concluded that one of the asserted patents is directed to patent-eligible subject matter under Section 101."

CAFC did not agree about all 4 patents. This is the key part: "With respect to patent-eligibility, the Federal Circuit affirmed the district court’s finding that the claims were not directed toward an abstract idea for two reasons. First, the claims were drawn to behavior-based virus scanning which analyzes a downloadable’s code and determines whether it performs potentially dangerous or unwanted operations. This was different than the traditional method of code-matching virus scanning. The Federal Circuit determined that this was an improvement in computer functionality. Second, the results of the behavior-based virus scan are attached to a new type of file which enables a computer security system to perform tasks that it could not do before. Also, the claims recited more than a mere result and provided specific steps of generating a security profile that identifies suspicious code and links it to a downloadable."

That's just software patents.

There might even be another trial. To quote: "The Federal Circuit found that Finjan failed to present a damages case for one of the asserted patents that could support the jury’s verdict and remanded for a determination of whether Finjan waived its right to establish reasonable royalty damages under a new theory and whether to order a new trial on damages."

"IBM -- like Microsoft -- is literally in the business of fueling patent trolls these days."What is also interesting about this case is that there are ramifications for Symantec (Finjan is suing just about the whole security industry, except Microsoft, as it is deeply connected to Finjan).

The Symantec connection is explained here in relation to another Microsoft-connected troll, Intellectual Ventures.

The year's first substantive patent-eligibility decision from the Federal Circuit is a rare victory for the patentee. It is also further evidence that the outcome of an eligibility analysis may be more dependent upon how the analysis is carried out than the actual language of the claims under review.

[...]

The Court began by distinguishing Finjan's claim with those of Intellectual Ventures I LLC v. Symantec Corp., where the Court concluded that "by itself, virus screening is well-known and constitutes an abstract idea." Particularly, claim 1 (as construed) requires that "the security profile includes details about the suspicious code in the received downloadable, such as . . . all potentially hostile or suspicious code operations that may be attempted by the Downloadable." Thus, "[t]he security profile must include the information about potentially hostile operations produced by a behavior-based virus scan." In this light, the claimed invention is distinguishable from traditional virus scans that look for previously identified patterns of suspicious code in executable programs.



Here's a new report which suggests that the above possibley leads to mistrial:

A California federal judge on Wednesday granted Symantec unit Blue Coat’s request for a mistrial in a cybersecurity patent infringement case brought by Finjan, saying a just-issued Federal Circuit decision striking damages in a related case called for a fresh jury, free from certain impressions about damages and willfulness issues.

The presiding judge said she agreed with concerns expressed by Symantec-acquired Blue Coat Systems that the Federal Circuit's opinion in the prior case affects many of the issues that have been discussed in the current trial...


As we noted in our previous post, IBM was helping the troll last year. IBM -- like Microsoft -- is literally in the business of fueling patent trolls these days. When these trolls are indebted to IBM and Microsoft they will sue neither; instead, they're more likely to sue IBM's and Microsoft's competitors. That may be an implicit if not explicit part of their agreement.

Recent Techrights' Posts

Last Week's EPO Strike Was the Biggest (Highest Participation Rate), Hours Ago General Assembly Discussed Next (Growing) Intensity of Strikes
Well done and well attended
Mass Layoffs at HashiCorp, IBM Hid Them
The media did not mention those layoffs
Microsoft Downgraded on Concerns (Lack of Growth) Amid Silent Layoffs in 2026
The press isn't functioning anymore
Links 23/03/2026: Gulf Water at Risk, Heatwave in Malaysia
Links for the day
Slop Means False, New Article by Cybershow
"We are living in a world that is rapidly divesting from reality."
Debianism election 2026 community poll created, everybody can vote
Reprinted with permission from Daniel Pocock
Links 23/03/2026: "Shocking Peter Thiel Antichrist Lectures", Robert Mueller Remembered
Links for the day
The Scandal Bigger Than IBM/Red Hat Layoffs is the de Facto "Media Blackout" About Those Layoffs
So we have a media crisis, aside from the economic crises
Gemini Links 23/03/2026: Geminispace/Elpher Enhancement and the Cerberus Cinco
Links for the day
Fear is Not a Legitimate Factor
Smart people know that trying to prevent moral people from doing the "Right Thing" will backfire
Fuel Autonomy and What It Teaches Us About Software Autonomy (or Software Freedom)
Need we wait until a "software Pearl Harbor" or protect ourselves proactively by weaning ourselves off of GAFAMware?
Scheduled Maintenance This Coming Wednesday
Other than that, all is the same and we carry on as usual
Most Press Articles About IBM Are LLM Slop, Sometimes With Slop Images
IBM basically laid off almost 1,000 people last week [...] At the moment about 75% of the 'articles' we see about IBM (in recent days) are some kind of slop
Links 23/03/2026: Security Breaches, Energy Shortages, Another SRA Scandal, and Patents on Nature
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, March 22, 2026
IRC logs for Sunday, March 22, 2026
Streisand Effect and Justice
This weekend this site has served over 8 million Web requests
Gemini Links 22/03/2026: "Woman of Tomorrow" and "First Steps in Geminispace"
Links for the day
SLAPP Censorship - Part 19 Out of 200: They Were Ill-prepared for Tough Questions in Cross-Examination
Very ill-prepared for the deteriorating situation caused by their clients' past behaviour towards many people, including high-profile figures who offered to testify
The Media Sold Out to Slop Bros
If you wish for the hype to stop, then stop participating in it
EPO Strike a Week From Now, After That Strikes Can Become Permanent
A week from tomorrow there will be another strike
The Only Non-IBM Staff in Fedora Council/Leadership Attacks Booting Freedom (Just Like the Master Wants)
Last week IBM laid off almost 1,000 people in Confluent and the media didn't write anything about it, so don't expect anyone in what's left of the media to comment on Fedora's demise and silent layoffs at Red Hat
Just Like a Founder of XBox Said, Microsoft XBox is Collapsing, Management Continue to Jump Ship
Nowadays Microsoft tries to promote this idea that Windows is XBox and XBox is Windows
Links 22/03/2026: Slop Triggers Emergency at Meta, Energy Prices Rise Sharply
Links for the day
Links 22/03/2026: Microsoft 'Open' 'AI' in Legal Trouble (Plagiarism, Distortion, Misrepresentation); Facebook/Meta Kills Off "Horizon Worlds"
Links for the day
Racism Dressed Up as "Choice"
Racism is rampant at IBM
Probably an All-Time Record
Our investment in our own SSG is paying off
Your Site Should Implement Its Own Search (Before It's Too Late)
GAFAM was never trustworthy
Gemini Links 22/03/2026: LLM Slop Attacks USENET, Announcing Pig (New Game in Gemini Protocol)
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 21, 2026
IRC logs for Saturday, March 21, 2026
SLAPP Censorship - Part 18 Out of 200: Third Parties Funding Attacks on the Messengers, Lawsuits Against GAFAM-Critical Voices That Uphold Real National Security
Women are like kryptonite to them
Never Trust People Who Write Their Own Wikipedia Pages (Vanity Pages About Themselves) or Ask Friends to Do So. Also: Jono Bacon is Married to Microsoft.
We'd hardly be the first to point out Wikipedia isn't what it seems
No Tolerance for Attacks on Family Members
Being a Free software activist ought not lead to "collateral damage" like attacks on family members, including doxing
Sirius Open Source is Just a Zombie Firm With Shell Entities
Many companies fake their health and their size
Communities Can Only Survive When Trust Prevails
PCLinuxOS is still a vibrant and authentic community
Techrights Was Always a Community Site
The harder we're attacked, the more people participate in the site
Maintenance Reminder
We'll carry on publishing
Behind the PR Smokescreen and Microsoft-Sponsored Chaff, Microsoft Layoffs in "AI" Alleged This Month
In an age when ~1,000 simultaneous layoffs aren't enough to receive any media coverage, what can we expect remaining publishers to tell us about Microsoft layoffs in 2026?
EPO "Cocaine Communication Manager" - Part VIII - Mobbing and Silencing of Dissenting Staff
that's the very cornerstone of functional democracies with real opposition parties
Bluewashing at Confluent: Some Workers to Leave Within 3 Months (IBM Mass Layoffs)
Is the "era of AI" an era when none of the media will mention over 800 layoffs? [...] There's a lesson here about the state of the contemporary media, not just IBM and bluewashing
Microsoft OpenAI, Drowning in Debt and Forced to Make Significant Cuts (as Reports Reveal This Month), Does Hiring Disguised as "Takeovers" to Fake Value or Alleged Potential
Remember what happened to Skype last year
Reader Shares Recent Memes on Slop and 'Coding' by LLMs
"just some funny memes I thought were relevant to current coverage."
Slop Does Not Replace Art, It Contaminates Everything With Reckless Nonsense
many Computer Scientists do not want programs to get contaminated by slop
Coders Don't Just Reject 'Vibe Coding' Because They're "Luddites", They Just Know the True Cost of Slop
if some programmer says slop sucks, don't rush to assume selfishness or defence of one's occupation
When Nobody Else Covers the News
There's an obvious "media blackout" regarding the mass layoffs
Links 21/03/2026: David Botstein Dies, Slop as Censorship Apparatus
Links for the day
Links 21/03/2026: Metastablecoin Fragmentation and Crescent Moon
Links for the day
Gemini Links 21/03/2026: Historic Ada Docs; The Lurking LLM on the SmolNet
Links for the day
HSBC the Latest Failed Bank Using Slop as Excuse for Its Financial Failure
"HSBC is planning on cutting as many as 20,000 jobs in the near future as the company allies with AI revolution."
Invitation to General Assembly After 1,200 EPO Workers Participated in the Demonstration 3 Days Ago
"the strike of 19 March was also very well followed."
A/Prof Susan G Kleinmann, Enkelena Haxhija & Debian-private risk to MIT
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 20, 2026
IRC logs for Friday, March 20, 2026