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

Protecting People From So-called 'Social Media' is Not Censorship (No More Than Banning or Restricting Access to Cigarettes is 'Censorship')
it's not censorship when the thing you are censoring [sic] is itself a censorship powerhouse operated by a foreign and hostile nation (or oligarchs of Musk's nature)
[Meme] Solving Real Problems With So-called 'Social Media'?
Feeding and medically treating animals helps, unlike "likes"
EPO is Corrupt Like Always, What Changed is the Lack of Media Coverage (No Transparency Means No Democracy)
We need to revive online media and encourage dissent
[Meme] How NOT to Do Activism Online
So many self-professed liberals continue participating and driving traffic (ads) in X
Number of Libera.Chat Users (Simultaneously Online) Falls to Lowest Figure in Over 3 Years
Notice the downward trend/curve in recent months
Shedding Light on How the EPO Sheds Off Staff in Order to Grant Loads of Invalid (Fake) Patents in Europe
The people who decide on these policies lack a background in science
 
Google Has Only Solidified Its Search Monopoly in Africa Since Microsoft's Chatbot/LLM Hype Started
Africa is basically a "Failed Market" to Microsoft
[Teaser] EPO is Running Out of Brains
EPO has been in the business of offering fake patents
South Korea Has Its Own Alternative to IBM's Proprietary RHEL
Owing to the Open Enterprise Linux Association (OpenELA)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, December 11, 2024
IRC logs for Wednesday, December 11, 2024
Fresh Rumour of Wave of IBM Layoffs Less Than a Fortnight Before Xmas Day
Unverified and anonymous
Links 11/12/2024: Additional Surveillance Ambitions and Cyberattacks on Sudanese Media
Links for the day
Links 11/12/2024: More Google Layoffs Rumoured for January, 'Linux' Foundation Colonises India
Links for the day
Mozilla's Firefox is Floundering, in the United Kingdom Its Share Fell to 2% This Month
HTTPS is becoming little but a transport layer for Chrome-like browsers, i.e. proprietary things with DRM and perhaps attestation (which means you cannot modify them; you'd get blocked for trying)
Links 11/12/2024: Climate Warming, 'People Can Fly' Layoffs
Links for the day
Gemini Links 11/12/2024: LLMs as Plagiarism, Advent of Code 2024 Momentum
Links for the day
In United Arab Emirates (UAE), Microsoft Now on One in 8 Internet-Connected Devices?
Web-connected clients are becoming scarce that run Microsoft operating systems (Windows)
IBM and Microsoft Hats at Linux Foundation
"Fedora Project Leader Matthew Miller: A change of hats!"
IBM's Latest Fedora Divestment Speaks for Itself
Microsoft must be very pleased with what IBM is doing
Why is UK Press Gazette Jingoistic About Plagiarists and LLM Slop Disguised as Journalism?
Press Gazette appears to be participating in the attack on honest journalism
In Central Africa, Which is Bigger Than Europe, Windows is About 5% in Terms of "Market Share"
they apparently got so fed up with colonialism
Communicating Outside of Skinnerboxes and Social Control Media
Tackling collective isolation and miscommunication (or communications being controlled by middlemen)
[Meme] Social Control Media is NOT Free Speech
It's time to discard that stupid argument that banning an abusive censor is "censorship"
Banning Not Only TikTok... if Not for FOMOC (Fear of Missing on Constituents)
It's a sort of addiction by peer pressure
Montenegro's Share of GNU/Linux Reaches All-Time High
We don't really know why, but that's just what the data from statCounter suggests
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, December 10, 2024
IRC logs for Tuesday, December 10, 2024
Yes, Of Course the Linux Foundation's OpenSSF Rejects Open Source and GNU/Linux (New Report)
longstanding tradition
Links 10/12/2024: Nvidia's Regulatory Woes, Trust Issues in LLMs (and Similar Recent Hype)
Links for the day
Gemini Links 10/12/2024: Lagrange 1.18.4 Released, New RNG
Links for the day
More Chatbot 'Articles' About Chatbots
Look what's happening to the Web...
Microsoft Falls to All-Time Lows in Cameroon
Windows down to just 4.6%
Brittany Day Still Uses Bots to 'Write' Articles (But Not All the Time)
it leads to a presumption of plagiarism
Links 10/12/2024: Trying "Hey Hi" With New Hype and Buzzwords, TikTok Bans Imminent
Links for the day
Google's CEO: LLMs' ‘Low-Hanging Fruit’ Now Exhausted
They basically tell shareholders not to expect returns on this hype
Microsoft Windows Falls to 11% in Senegal, an All-Time Low
In neighbouring countries (to the east of Senegal) the "market share" of Windows is even lower
The EPO's Corrupt Dealings With Microsoft Never Addressed, Only Worsened
it helps Microsoft spy on the competition and manipulate examiners dealing with its files
The Catching of Luigi Mangione Shows We Need Not Have More Surveillance (Than We Already Have; It's Excessive Anyway)
instead of saying surveillance is insufficient and thus we need more of it, now they can claim they have enough of it
[Teaser] Fate of Formalities Officers (FOs) at the EPO
Coming soon
Libre Liberia: Windows Down to 8% in Liberia
In Liberia, only about 1 in 12 Web requests seems to originate from Windows
Links 10/12/2024: Health, Politics, Economics, and More
Links for the day
Gemini Links 10/12/2024: LLM Plagiarism and "Flow" Review
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, December 09, 2024
IRC logs for Monday, December 09, 2024