Bonum Certa Men Certa

The Patent Litigation 'Industry' Celebrates Outcome of Berkheimer v HP, But It's Not About ۤ 101

The decision concerns presentation or availability of evidence (ۤ 101 being more of a 'footnote')

Berkheimer v HP



Summary: A case which isn't inherently about ۤ 101 but about the evidence backing rejection of a patent (see above) is being spun by patent maximalists, who also resort to bashing of judges, academics, and Justices (Supreme Court) in the process

THE patent microcosm isn't used to being publicly challenged. It is not accustomed to refutation. It just pays money to dominate the news feeds and spread its delusional vision. The EPO does this in Europe (because Battistelli has no qualm about corrupting media), but in the US it's not the USPTO but the patent microcosm which does all this. This post is a quick debunking.

"It's not applicable just to ۤ 101 and there is nothing extraordinary about it."A lot of it started when Patently-O's Dennis Crouch wrote about "Underlying Questions of Fact", quoting the following passage: "While patent eligibility is ultimately a question of law, the district court erred in concluding there are no underlying factual questions to the ۤ 101 inquiry. Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination."

So that's about it. It's not applicable just to ۤ 101 and there is nothing extraordinary about it. Here is the original decision rather than the 'twist' from the patent microcosm. Michael Loney (part of the patent microcosm's media) wrote: "Important statement from the Federal Circuit on the factual underpinnings of the eligibility analysis, in Berkheimer v HP..."

"The Federal Circuit is not the US Supreme Court, so whether that "sets new rules for fact finding" remains to be seen (in practice)."Important statement or important for the patent microcosm statement? Those two things aren't the same.

As one patent-centric person put it: "FedCir vacates summary judgment of ineligibility on dependent claims due to representative treatment of independent. Court says eligibility is a question of fact. So... Rule 132 decs to traverse 101 rejections?"

"They maliciously imply that the courts have thus far rejected facts. That's how patent trolls and extremists prefer to think of it."Professor Risch wrote about the same decision that the "Federal Circuit sets new rules for fact finding in patentable subject matter determinations. Underlying determinations of conventionality must be supported. I see this one going en banc."

The Federal Circuit is not the US Supreme Court, so whether that "sets new rules for fact finding" remains to be seen (in practice). A patent maximalist wrote: "The Fed. Cir. Held Today that the PTAB Does Indeed Need Facts, Not Just Official Notice, to Make a 101 Case" (he links to a site of a literal patent troll).

"Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB."Notice the above headline. They maliciously imply that the courts have thus far rejected facts. That's how patent trolls and extremists prefer to think of it.

A different patent-centric person (more balanced) said: "Berkheimer v HP FedCir 2/8/18 affirms cl 1 not 101 eligible BUT vacates SJ re cls 4-7; fact q's exist under Alice step 2. "Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination." Other cls indef."

It's all about that passage quoted in Patently-O. Another patent-centric person called it a "[m]omentous decision." He said: "For the first time, FedCir vacated a SJ of patent ineligibility on ground that there is a genuine dispute of material fact underlying 101 determination. And, opinion holds that resolution requires meeting the clear and convincing standard for the defendant."

Then came a trolls-connected crank who likes to bash professors whom he does not agree with. He is attacking Professor Lemley again: "If Lemley were any more transparent he'd be Saran Wrap Every "principle," every "well reasoned argument" spouted from his fraudulent lips about evils/benefits of patents is a farce, a charade whose only purpose is to generate more billings for firm by introducing uncertainty [...] opinion holds that resolution requires meeting the clear and convincing standard for the defendant" Im embarrassed to say I didn't even notice how important that is... so far the panels have been ducking the SOP, and this is also extremely useful [...] Listening to oral argument in Berkheimer case: http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2017-1437.mp3 … Apparent that Moore, Stoll, think support in specification for technical advantage can create dispute of fact to defeat 101 - pray for them on your panel if you have a #patent Alice rejection case!"

"And if that's not bad enough (bashing academics you don't agree with and claiming they're not professors even though they are), then came bashing of SCOTUS..."Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB. The patent troll wrote: "How am I to take this "scholarly" paper seriously from a (co) author, an executive for Unified Patents & whose firm has a PTAB institution rate 33 points BELOW the industry average? And he knows "low quality patents"?"

The troll's friend (who wrote pieces against the EFF for the troll's site) dished some more dirt: "inter partes review is, as Congress intended, eliminating patents that appear to be of relatively low quality" papers.ssrn.com/sol3/papers.cf… No, IPR=rigged game where patent owner given 1 yr to defend vs infringer who has 6 mo head start, like giving runner 50m head start in 100m race"

"What pretty much all the above have in common is that they make it about ۤ 101, striving to almost cast it "irrelevant" and in need of deprecation."And if that's not bad enough (bashing academics you don't agree with and claiming they're not professors even though they are), then came bashing of SCOTUS: "don't know if there were method claims in those patents, but to some extent, the attorney was 100% right; if you're going to say use of one physical generic machine (computer) can be abstract, why can't use of another physical machine be similar abstract? SCOTUS gave us this mess..."

No, SCOTUS belatedly (decades late) dealt with the issue and did the right thing. Sure, patent trolls aren't happy about it, but nobody is happy about patent trolls, either.

He's basically ranting about other things, still upset that PTAB eliminates many software patents. What we have here is a proponent of lawless patent trolls who use bogus patents (which PTAB tackles) for blackmail. There have been all sorts of other attacks on PTAB from his account this past week, e.g. [1, 2, 3], not to mention veiled advocacy of software patents. His online friend was all over Berkheimer v HP [1, 2], as well as another precedential new decision. What pretty much all the above have in common is that they make it about ۤ 101, striving to almost cast it "irrelevant" and in need of deprecation.

"The Internet can oftentimes be like an echo chamber, especially so-called 'social media', so patent maximalists are likely exposed only to voices to people who already agree with them."Go back to the source from the Court of Appeals for the Federal Circuit (CAFC) (we have made this local copy, it's 17 pages long, with ۤ 101 mentioned about a dozen times, i.e. less than once per page) and read what was actually said. The Internet can oftentimes be like an echo chamber, especially so-called 'social media', so patent maximalists are likely exposed only to voices to people who already agree with them.

Recent Techrights' Posts

Free Software Foundation's Miriam Bastian: We Surpassed Our Year-end Goal of $400,000 USD Thanks to You!
Miriam Bastian: We surpassed our year-end goal of $400,000 USD!
Red Hat Offers DRM, TPM, and Backed Doored 'Confidential' Containers (CoCo) for Microsoft (Proprietary Spyware)
No kidding!
 
Links 22/01/2025: Jeju Air Blame-Shifting (Talk to the Wall), Copyright Maximalism Rebounds
Links for the day
[Meme] The 'Garbage in, Garbage Out' Patent Office
"law of the buzzword"
Clueless and Nontechnical EPO Management Uses the 'Great Scam' (Hey Hi Hype) to Justify Automation Where It's Both Detrimental and Illegal
The EPC has been practically set aflame; thus, the EPO has no legitimacy or reason to exist anymore
Links 22/01/2025: Democratising Tech Initiative and "Bye Bye Meta"
Links for the day
The Japanese translation of the term "free software"
by Akira Urushibata
Links 22/01/2025: "The AI Bubble Is Bursting" and Microsoft's Scam Altman is Already Looking for De Facto Bailout From the Insurrectionist
Links for the day
Dr. Andy Farnell's Latest Article About Software Freedom and Richard Stallman
why Dr. Stallman is being picked on
Geminispace (Gemini Protocol) Offers an Escape From Social Control Networks Owned by Oligarchs and Governments
Gemini capsules that promote fascism and retreat to feudalism are rare and scarce
The Free Software Foundation (FSF) Has Formally Added an Outreach and Communications Coordinator
Maybe the addition happened last year (we mentioned it in passing), but now it's in the "rota"
Electronic Frontier Foundation: Fighting 'for the Poor and Powerless' While Taking Home $336,000 in Annual Salary
nowadays works for or serves not the interests of the masses
Of Note: The Misguided, Infiltrated, Weakened Electronic Frontier Foundation (EFF) Now Operating at a Loss of Over a Million Dollars
Worst since the COVID-19 lockdowns
[Meme] Omit Microsoft When It's a Scandal or a Breach, Whereupon It Becomes Just an 'IT Company'
Microsoft is like a cult. Members of this cult promote the opposite of security, expecting to be financially rewarded for it.
Calling Out Windows (TCO) is Apparently Impermissible in Some News Sites
The online news sites are failing us (and corporate sponsors play a role)
Richard Stallman's Remarks on His Pain
Published two days ago
Focusing on the Issues
we'll do our best to find the news and not talk about "Mr. T"
Only About 3.6% of Web Users in Pakistan Use Vista 11, According to statCounter
It's not hard to see why so far in 2025 Microsoft has already had several waves of mass layoffs - more than any other company
Rumour: In IBM, Impending "25% Reduction in Finance Roles"
25% to be laid off?
[Meme] Fake Articles From linuxsecurity.com (Just Googlebombing "Linux" With LLM Slop)
Google should really just entirely delist that site
RedHat.com Written by Microsoft Staff, Promoting Microsoft' Proprietary Software That Does Not Even Run on Linux!
This is RedHat.com this week...
Links 22/01/2025: Mass Layoffs at Stripe, Microsoft's Illegal Accounting Practices Under Scrutiny
Links for the day
Fake 'Article' by Brittany Day (Guardian Digital, Inc) About Linux Mint 22.1 'Xia'
Apparently they've convinced themselves that this is OK
Red Hat Dumps "Inclusive Language", Puts "Master" In Official Communications and Headlines
Red Hat: you CANNOT say "master" (because it is racist). Also Red Hat: we put in it our headlines.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, January 21, 2025
IRC logs for Tuesday, January 21, 2025
Gemini Links 21/01/2025: Media Provocations and Nazis Not Tolerated
Links for the day
[Meme] Plagiarism Does Not Eliminate Jobs by Replacing Humans, It Replaces Human Knowledge With False Cruft
We need to boycott sites that fake their output
Slopwatch: BetaNews Plagiarism and LLM Slop by UNIXMen
"state-of-the-art" plagiarism
What Fedora, OpenSUSE, and Debian Elections Teach Us About the State of Weak (or Fake) Communities
They show a total lack of trust in these communities
[Meme] Doing Dog's Job (Not God's Job)
The FSF did not advertise the talk by RMS (its founder), who spoke in France almost exactly 23 hours ago
Links 21/01/2025: Mass Layoffs in "Security" at Microsoft (Despite Microsoft Promising It Would Improve After Many Megabreaches), Skype is Dead (Quietly)
Links for the day
Alternate Version of Daniel Pocock's 2024 Talk, "Technology in European Parliament Election Campaign"
There's loud ovation at the end of the talk
Gemini Links 21/01/2025: London Library, Kobo Sage, and Beyerdynamic DT 48 E
Links for the day
The January 20 Public Talk by Richard Stallman (Around Midday ET), Livestream 'Assassinated' by Google's YouTube
our guess is that the 'cancel mob' sabotaged it, possibly by making a lot of false reports to YouTube
[Meme] Free Software and Socially-Engineered Groupthink (to Serve Big Sponsors Like Google and Microsoft)
They do this to RMS all the time
[Video] Daniel Pocock's Public Talk About Free Software Politics, Social Engineering, Debian Deaths and Suicides, Coercion and Exploitation of Women
took many months to get
BetaNews Cannot Survive If Its Fake Articles Are Just SPAM for Companies Like AOHi and Aren't Even Composed by Humans
This is what domains or former "news" sites do when they die and look very desperately for "another way"
Pocock shot in the face, shot in the back, shot on Hitler's birthday saving France, Belgium and FOSDEM
Reprinted with permission from Daniel Pocock
Dr Richard Stallman in Montpellier, Robert Edward Ernest Pocock in France
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, January 20, 2025
IRC logs for Monday, January 20, 2025
Links 20/01/2025: Conflict, Climate, and More
Links for the day
Gemini Links 20/01/2025: Conflicted Feelings and Politics
Links for the day
Daniel Pocock's ClueCon 2024 Presentation Was Also Streamed Live in YouTube and Later Removed by Google, Citing "Copyrights". Now It's Back.
The talk covers social control media, Debian, politics, and more
Google 'Cancels' RMS
Is the talk happening?
Microsoft Revisionism Debunked by Microsoft's Own Words About “the Failure of OS/2”
The Register on “the failure of OS/2”
Improving Daily Links by Culling Spam, Chaff, and LLM Slop
the Web is getting worse
Links 20/01/2025: Indonesia to Prevents Kids' Access to Social Control Media (Addiction and Worse), Climate News Catchuo
Links for the day
[Meme] EPO Targets
Targets mean nothing if or when you measure the wrong thing
EPO Union Says Monopoly-Granting Targets at EPO "Difficult to Achieve Without Compromising [Staff] Health, Personal Time or the Quality of the Final Products" (Products as in Monopolies, Not Real Products)
To those of us (over 99.999% of people impacted by this) who do not work at the EPO the misuse of words like "products" (monopolies are not products) should be disturbing
The EPO is Nowadays Trying to Trick Staff Into Settling Instead of Solving the Underlying Problems of Corruption and Injustice
This seems like a classic case of "divide-and-rule" or using misled/weak people to harm the whole group (or "the village")
Links 20/01/2025: More PR Stunts by ByteDance and MLK’s Legacy Disrespected
Links for the day
Gemini Links 20/01/2025: Magnetic Fields, NixOS, and Pleroma
Links for the day
BetaNews Spreads Donald Trump Propaganda, Promotes Scams, and Publishes Fake 'Articles' About "Linux"
This is typical BetaNews
Richard Stallman 'Unveils' His January 20 Talk in Montpellier, France
It's free (gratis)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 19, 2025
IRC logs for Sunday, January 19, 2025