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

Microsoft Blasted for Adding Insult to Injury: Workers Laid Off Without Prior Notice, Without Severance Payment and Basic Coverage (Like Health), Then Stigmatised as Bad Performers So They Cannot Find a Job Elsewhere
Such stereotypes end entire careers
BetaNews is Still Publishing LLM Slop/SPAM About "Linux"
Assuming it is indeed LLM slop, it seems clear BetaNews has no intention of improving or is simply unable/unwilling to improve
If Matthias Kirschner Loves Free Software, He'll Change the Name of the Microsoft-Sponsored Organisation He Governs (in Order to Avoid Confusion)
The FSF-EEE does not really like Software Freedom, it just loves money (including Microsoft's)
EPO's Local Occupational Health, Safety and Ergonomics Committee (LOHSEC) in The Hague: Workers Are Getting Sicker, Conditions in Which to Assess Patent Applications Deteriorate
"According to the Office statistics the total number of days of absence has gone up from 12.4 to 13.1 total number of sick days per Full Time Equivalent (FTE) from 2023 to 2024."
The Standard Needs to Improve Its Standards for Fact-Checking, Aaron Swartz Had Nothing to Do With Reddit and He Detested the Company That Created It
The Web is already bad enough as it is
New Paper From the EPO Highlights Large-Scale Discrimination at the Office, Where People Are Rewarded for Granting More and More Illegal Patents
Even the Kremlin is probably more competent than this
 
Microsoft in Africa: From 98% to Less Than 10% in Just 16 Years
Microsoft being on less than 1 in 10 Web-connected devices in Africa is a very big deal
Almost as If MElon Reads Techrights
The joke we started appears to be spreading
Gemini Links 11/02/2025: NeoVim and Deploying Other People's Code
Links for the day
IBM Layoff Rumours, Large-Scale Implementations Weeks Ahead (in March 2025)
There are some people corroborating
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 10, 2025
IRC logs for Monday, February 10, 2025
Scheduled Maintenance Tomorrow and on Valentines
If the site (or Gemini capsule) is offline for a bit, the maintenance windows are likely the root cause
Soylent News Lessens the Scope of Discussion Due to Persistent Trolling and Online Abuse
if they make it a lot harder for new people to participate, then they limit the "general appeal" and reach
When the Livestream of Richard Stallman is Apparently Bury-Brigaded Offline You Finally Learn to Avoid Google/YouTube for Streaming
Please, people, stop uploading to Google/YouTube
Links 10/02/2025: Ban on D.E.I. Language, Listeria Risk/Outbreak
Links for the day
Links 10/02/2025: Announcing "Stringless" and Mental Health Improvement
Links for the day
Links 10/02/2025: Facebook Mass Layoffs, "Meta" Did What Aaron Swartz Had Done But to the Tune of 81.7 Terabytes
Links for the day
Microsoft Tarnishing the Brand of Arch
Of course Arch can do whatever it wants, but being associated with Microsoft is a badge of shame
The Ultimate and Inevitable Fall of OpenAI (Even Brave is 'Bigger' Now)
"When you advertise at the Super Bowl, you’ve reached just about every consumer in America. It’s the last stop. If you’re not profitable yet, you never will be."
Adding Slop to Your Blog Only Makes One Assume All the Text is LLM Slop
Simon Coter from Oracle has turned to slop
Macao is Leaving Microsoft Behind
Windows is falling to new all-time lows
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, February 09, 2025
IRC logs for Sunday, February 09, 2025
Microsoft's WSL (LSW) Shows That It Can Never Love Linux, Only Windows
that's just how Microsoft rolls
Activism in Times of War and a Coup
'Linux' Foundation works for fascism
What the Silencing of Neatnik Tells Us About Linus Torvalds Inside a Microsoft-Dominated 'Linux' Foundation
Is Linus Torvalds free to express his mind as he wishes about every topic, even just any technical topic?
Windows Down to 11.35% in Senegal, as Measured by statCounter
Another all-time low (Windows was at 99% in 2009)
"Latest Technology News" in BetaNews is LLM Slop Promoting OOXML and Proprietary Software at the Expense of LibreOffice and OpenDocument Format (ODF)
Remember that "open-source" and Open Source aren't the same; the former is fake
Links 09/02/2025: Coffee, Toxic Productivity, and Programming
Links for the day
Debian's Human Rights violations & Swiss women Nazi symbolism
Reprinted with permission from Daniel Pocock
Links 09/02/2025: Software Patents on MP3 and Another Scam Dressed Up as "Crypto"
Links for the day
Links 09/02/2025: Russian Energy Cut Off, LLM Pushers Show Signs of Desperation
Links for the day
Richard Stallman (RMS) Does Not Have Media Companies and Lobbyists on His Side, But His Message Spreads Regardless
The message of RMS is spreading in spite of all the smears
GNU/Linux Rises to All-Time High in Chile
sharp rise for GNU/Linux in Chile
Links 09/02/2025: Hottest January on Record, Panama Blackmailed
Links for the day
Why We Still Love Gemini Protocol
Gemini Protocol may seem like something "old" (it's actually very new) and something "nobody would use", but many people use it
Gemini Links 09/02/2025: "Died as a Mineral" and Game Interface for a Non-Game
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, February 08, 2025
IRC logs for Saturday, February 08, 2025