Bonum Certa Men Certa

The Lobby for Software Patents -- Including Microsoft-Connected Law Firms -- Clings Onto One Patent From a Microsoft-Sponsored Patent Troll

It helps to follow the money...

Microsoft Finjan stake



Summary: There's no evidence that software patents are coming back to the US any time soon, but lobbyists of this 'cause' (like the firm of Bill Gates' father) obsess over a single patent of the Microsoft-sponsored Finjan, hailing it as some sort of 'evidence' of a resurgence

THE UNITED STATES is certainly moving away from software patents. Don't be misled by those who claim otherwise. They're typically those who stand to gain (financially) from the practice of patenting algorithms -- not because they actually develop software/write code but because they work for law firms that milk coders. I have been writing about it since my early 20s and I know how these people think. They're not honest. They tend to be pretty greedy and they justify their lies to themselves (e.g. about coders needing patents and about software patents having 'teeth' in the UK).



Earlier today the Indian press published something titled "Where is Indian science headed?" It looked OK until the following sentence: "Software patents have been on the rise vis-a-vis pharma patents and this is MNC-driven, especially at the US end."

What planet is he living on?! The US cracks down on software patents. The only thing on the rise is invalidation of software patents.

Record year for PTAB, as we noted here before, is something that even foes of PTAB find themselves having to admit today (IAM's own headline said "PTAB breaks records" a few hours ago). PTAB is very important because it eliminates many USPTO-granted software patents, even when there's no lawsuit but merely a threat of one (trolls do this a lot, especially to poor people/businesses because it keeps the racket safer from scrutiny). There's nothing new to see in that IAM article; IAM is just reprinting charts from RPX and Unified Patents. Let's pretend for a moment that IAM is serious journalism and not just lobbying. Oh, wait; never mind... that would be hard to pretend.

Let's look at how the patent microcosm is attempting to spin decisions of the Court of Appeals for the Federal Circuit (CAFC). CAFC has just agreed (as usual) with PTAB and threw away a bad patent (not about software, but problematic for other reasons). Donald Zuhn wrote about it:

Last week, the Federal Circuit affirmed the rejection by the U.S. Patent and Trademark Office's Patent Trial and Appeal Board of claims 1-7 of U.S. Patent No. 6,284,471 as being unpatentable under the doctrine of obviousness-type double patenting. Janssen Biotech, Inc. and New York University ("Janssen"), co-assignees of the '471 patent, argued on appeal that obviousness-type double patenting was not applicable because the safe-harbor provision of 35 U.S.C. €§ 121 protected the '471 patent claims. In affirming the Board's decision, however, the Federal Circuit determined that the '471 patent was not entitled to safe-harbor protections.

[...]

The opinion concludes with the panel finding to be unpersuasive Janssen's argument that the Board erred by failing to apply a two-way test for double patenting. Instead, the panel concluded that Janssen failed to establish that the PTO is "solely responsible" for any alleged delay associated with the issuance of the '471 patent. Finding that the '471 patent was not entitled to safe-harbor protections, and that the Board did not err in applying the one-way test for double patenting, the Federal Circuit affirmed the Board's rejection of claims 1–7 of the '471 patent as being unpatentable under the doctrine of obviousness-type double patenting.


The Federal Circuit (CAFC) almost always agrees with PTAB. In 2016 and 2017 estimates stood at about 80% validation rate (CAFC validating the PTAB's judgments in 4 out of 5 cases). The patent microcosm does not like pointing it out because it wants us to think that PTAB does mock trials or is a "kangaroo court" (Watchtroll used that smear yesterday).

Here is something we found curious this morning. Nolan R. Hubbard and Kenneth C. Liao from K&L Gates (the firm of Bill Gates Sr. and hence somewhat of a Microsoft proxy) continue to lobby for software patents in the US. Microsoft can pretend to have nothing to do with it, but over the years we covered the many overlaps at K&L Gates. They actually use as their CAFC case study this Microsoft-sponsored patent troll, Finjan. To quote a portion:

Many software-related and business method-related patents have been invalidated for being directed to “abstract ideas.” On January 10, 2018, in Finjan, Inc., v. Blue Coat Systems, Inc., the Federal Circuit affirmed the district court’s holding that Finjan’s U.S. Patent No. 6,154,844 (“the ’844 patent”) [1] was not directed to an abstract idea and was therefore patent eligible subject matter under 35 U.S.C. €§ 101. The court’s threshold test for patent eligibility under €§ 101 is “whether the claims focus on the specific asserted improvement in computer capabilities . . . or, instead on a process that qualifies as an ‘abstract idea’ for which computers are invoked merely as a tool.” [2] The court’s recent decision provides additional guidance regarding the types of claims that constitute specific improvements in computer capabilities rather than being abstract ideas. The court additionally ruled on issues of infringement and damages.


They must love Finjan -- a troll case that we first covered weeks ago (we have written approximately half a dozen times about it since). Also today there's this article titled "The Current State of Computer Software Patentability" (sounds authoritative enough a headline). "It’s hard to predict the future of computer software patentability," says Adam Richards (sales and marketing person), who tries to sneak in software patents in spite of Alice. From his column which cites Microsoft cases like Enfish (CAFC level):

The intellectual property protection of software is extremely important for every industry. After all, the modern society depends on computer software. However, the intellectual property of it has been debated in recent years. Back in 2014, the United States Supreme Court made a huge patent decision. They stated that simply adding computer language to ordinary aspects of technology were not enough for someone to deserve a patent.

Before this decision was made, many thought that software patents would be completely eliminated. The Supreme Court decided not to take it that far and noted that software patents will still be allowed. Nevertheless, in order for someone to earn a patent, they would have to either improve an existing technological process or improve the functioning of the computer. Following this decision, a lot of patents became invalid since district court judges figured that most of them were simply abstract ideas that never even deserved a patent to begin with. It also became harder to obtain software patents because of the expectations.

[...]

It’s hard to predict the future of computer software patentability. After all, there haven’t been a lot of cases where a software invention was eligible for a patent. However, each case helps inventors learn more about how to determine patent eligibility for their innovations. Every company is encouraged to at least try and see if their software patents could be valid, even though the odds are against them.


The odds are indeed against them. Last year CAFC threw away pretty much every software patent. The Supreme Court won't overturn its judgment on Alice-type cases any time soon (if ever).

CAFC has meanwhile moved to ruling on another patent case involving so-called 'Divided Infringement' (capitalised even because it became somewhat of a formal term). As one law firm has just explained it:

Reaffirming the breadth of the Akamai standard for divided infringement, the US Court of Appeals for the Federal Circuit vacated a summary judgment of non-infringement where two steps of a four-step method for luggage screening were performed by the Transportation Security Administration (TSA) rather than by the defendant. Travel Sentry, Inc. v. Tropp, Case Nos. 16-2386; -2387; -2714; 17-1025 (Fed. Cir., Dec. 19, 2017) (O’Malley, J).


We certainly hope that CAFC and the Supreme Court won't do anything irrational in the sense that it feeds hopes of a software patents resurgence. One troll case where one patent among many survived the Section 101 test is hardly hope, except for wishful thinkers looking to deceive readers/clients.

Recent Techrights' Posts

Patients' Data Should Not be Outsourced to Any Party at All, Let's Redo the Storage Scheme
Far better than giving all our data to Microsoft and Palantir (US)
The Second-Largest Institution in Europe (EPO) is Playing With Fire and Now It Puts the Largest One (EU) at Risk
The EPO will have some more shake-ups
The EPO's Own 'Drug Bust': Berenguer is Gone, But Who Else?
EPO latest news
Improving Clarity When Presenting LLM Slop and Slop Images
There will likely be more changes (improvements) to improve the visibility of our labels
Articles About "Linux" That Are Actually Promotions of Microsoft Windows
The solution is to leave Windows, not get something "like Linux" or "similar to Linux"
Local Occupational Health, Safety and Ergonomics Committee (LOHSEC) in The Hague: Staff Representation Surprised at "Recent Changes in the Staffing of OHS Occupational Health Services (OHS)"
Once upon a time the Office offered to-notch services to all staff
IBM Exits Continue This Week
Some people talk about it anonymously, naming their role/position/unit, number of years (or band) etc.
 
British Army Officer Said Ubuntu Needed to Abandon Sudo for Rust's Imitation of Sudo and You Can Guess What Happened Next...
The not-so-drop-in replacement
The Open Web Has Fallen, It's Just Chrome
We cannot envision any other rendering engine (or "base") making any measurable headway
The EPO's Central Staff Committee Complains About the EPO's Management Faking "Production" (Monopolies) to Make More Money
The Central Staff Committee has a new communication
Ethical Consumer Could Use a Mention of "Ethical Software"
Maybe the Free Software Foundation (FSF) can get in touch with them
Links 12/11/2025: A US President (Insurrectionist) Attacking British Media, Hyundai's Digital Restrictions (DRM)
Links for the day
Gemini Links 12/11/2025: Trains in Switzerland, Software Survival, and More
Links for the day
Trying to Cancel People and Projects That You Don't Like by Changing the Focus to Politics
Don't fall for it
What Kind of Bubble is AI? We'll Find Out Very Soon
In 2022 and 2023 Cory Doctorow was one among many who asserted "AI" was a bubble
Mandrake's Gaël Duval Debunks Clickbait Nonsense From ZDNet, a Non-Coder Pushing Bot-Made 'Code' (Plagiarism Done Poorly)
"Why AI won't "Kill Open Source”
Groklaw Won't be the Latest (Nor the Last) Major Site We Lose
Many other sites will go offline; the more popular among those will get hijacked by rogue actors
Slopwatch Turns 1 Next Month
2024-12-14 is when Slopwatch began
The Issue With Firefox is Not Its Brand
Mozilla seems to be the biggest enemy of Firefox at this point
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, November 11, 2025
IRC logs for Tuesday, November 11, 2025
Gemini Links 11/11/2025: Kentucky, Bluesky, and Slop
Links for the day
The European Patent Office (EPO) is Still Hiding From Scandals
"No answers from VP1 to our letters to two Directors"
Like the Serial Strangler From Microsoft, Donald Trump is Out of Time and Has Jurisdiction Issues in the UK
The court system or the courts of a nations are meant to serve the nation and its media, not media lawyers or litigation profiteers
Slopwatch: Many Fake Articles About "Linux" on Monday and Today
A lot of the Web is pure garbage. A lot of 'articles' are 100% fake.
Richard Stallman to be First Speaker at Ethereum Cypherpunk Congress 5 Days From Now, FSF Looking to Raise $400,000 by Year's End
the 40+ years-old FSF, which Dr. Stallman created to help promote Software Freedom and support GNU, is starting a new fund-raising campaign
Links 11/11/2025: Misinformation/Disinformation in Twitter/X and BBC in Trouble
Links for the day
Links 11/11/2025: Slop Ruins Music, Facebook "to Discontinue Like and Comment Buttons on Third-Party Websites"
Links for the day
Adrian & Diana von Bidder-Senn, Debian: detailed history of a death
Reprinted with permission from Daniel Pocock
The Voice of Microsoft
Marketing disguised as a science
"MIT Technology Review Insights" is the Selling of Ponzi Schemes for Sponsors (MIT Lacks Integrity)
Just like IBM, they're chaining buzzwords now
Rust Keeps Breaking Ubuntu in All Sorts of Extraordinary Ways (and All Distros Based on Ubuntu Will Break Also)
The FSF's stance on this is unclear
Boot-locking Laptops and Desktops After Falsely Marketing That As 'Security' and Not Obligatory
If anyone can confirm this to us
With Net Income of One Billion Dollars Tesla Claims It Can Pay a Fake Founder (Who Paid for This Lie) 1,000 Billions
What does this tell us about Wall Street?
GNU/Linux Cannot Buy Fake Journalism and It Won't Bribe Large Publishers
Free software developers don't purchase "sponsored" placements and that will never change
The 'Politics' of Operating Systems (or Exclusion for Inclusion's Sake)
This whole 'wrongthink' policing is getting out of hand
Static Site Generators (SSGs) Save You Lots of Money and Problems
We've basically reduced the environmental/carbon footprint of the site by a factor of ~100 (2 orders of magnitude)
IBM Does Not Care About Families, Communities, and Even Its Own Workers
Red Hat isn't a family and to believe that it is would be the makeup of cults
Too Much of Today's Web is Fake, Not Just Fake News
We'll continue to advocate for adoption of Gemini Protocol
Simulating a Downtime Tomorrow Night
It is expected that network redundancy will make this maintenance invisible to us, but IRC hangups or general slowness are still a possibility
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, November 10, 2025
IRC logs for Monday, November 10, 2025
Links 11/11/2025: Conflicts and Politics From National Broadcasters
Links for the day
Gemini Links 11/11/2025: Poetry and Electronics Studies
Links for the day
Apple's Debt Grew by About 16 Billion Dollars This Past Year, "Disappointing iPhone Sales" Reported
People who buy Apple's goods based on some false notion that Apple is "cool" or ethical or "underdog" (late 90s) aren't just living in the past; they're fools
Turning Down Proprietary Software is About Making Society Better
We should not be tempted to shame people for merely trying to keep programmers honest and human rights-respecting
Debian GNU/Linux Became the Most Popular (Most Distros Are Based on It) Owing to Richard Stallman
New presentation
The Internet is Becoming Dead or a Zombie
The Internet is becoming like a giant botfarm
A Day for Poppies
This site will run as usual today. We continue our fight for Software Freedom.
"Modern" Doesn't Mean Better, It Typically Just Means Newer
RMS demonised as someone who rejects "modern society" ("rejecting modern society") by a site that uses slop extensively
The Cocaine Patent Office - Part IV: European Patent Office to Come Under Media and Political Scrutiny
We'll persist until we get some answers
Gemini Links 10/11/2025: Homelabs and KeePassRX Manual Now Available
Links for the day
63-Page Response to the EPO's Effort to Decrease the Salaries of Workers While EPO Management Snorts Cocaine for 20,000 Euros a Month
"Read more in these written comments we sent to the members of the GCC"
Response to Another New Hit Piece About Richard Stallman (RMS)
We see similar smears floating about and tackling them can help not only RMS but anyone who thinks similarly about computers
Shrinking and Cheapening the Workforce: the Future of Red Hat and IBM
Does Red Hat cheapen the workforce?
Links 10/11/2025: BBC Turmoil and Iranian Drought Crisis
Links for the day
The Register MS Still Occasionally Uses Slop
some articles don't use real images
Links 10/11/2025: "Scam Altman Gets Served Subpoena" and "China will Rule Renewable Energy"
Links for the day
ubuntupit.com Has Paused the LLM Slop (for Now)
No slopfarm ever offered any real value
More Media Coverage From Austria Regarding Cocaine Use by EPO Management
The ultimate goal is full accountability
Ponzi Economics and the Media's Role in Defending Ponzi Economics
We occasionally notice weak or almost-non-existent coverage regarding the economy
Links 10/11/2025: Very High Windows TCO and XBox Continues to Languish
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, November 09, 2025
IRC logs for Sunday, November 09, 2025