Bonum Certa Men Certa

Some €§ 101 Cases That the Patent 'Industry' Would Rather Not Talk (Much) About

Because that might damage faith in software patents

A quiet area



Summary: With €§ 101 still being entertained by courts and by PTAB, software patents continue to be invalidated, but these cases receive nowhere near the level of attention Berkheimer v HP received (because patent lawyers prefer to focus only on what suits their agenda)

THE existence of software patents at the USPTO gradually becomes more of a legacy. Sure, new ones continue to be granted, but few are asserted in a court of law. Some of them are regarded/considered to be next to worthless.

"The existence of software patents at the USPTO gradually becomes more of a legacy."Our previous article, regarding Berkheimer v HP, explained that it's not really about €§ 101, contrary to what the patent microcosm would like us to think. Michael Borella said some days ago that this decision "may result in the USPTO having to update its €§ 101 guidance for examiners and the PTAB."

May.

Maybe.

Like we said in the last article, this isn't the Supreme Court. Here is what patent maximalists want to believe:

But the impact of today's decision may be further-reaching than the other three. At the very least, it provides a degree of clarity as to the evidentiary standard applicable to a €§ 101 challenge on summary judgment. This may result in the USPTO having to update its €§ 101 guidance for examiners and the PTAB.


No, the same can be said for other sections. All that the court said was, sufficient evidence needs to be provided. That's all.

"...Even the US government strives to eliminate what it perceives to be software patents..."In another long article (published at 11:20 PM by Joseph Herndon) the same site said that the "U.S. Government Fails in Attempt to Invalidate U.S. Patents under €§ 101" (sounds promising for them, at least on the surface).

Even the US government strives to eliminate what it perceives to be software patents and here are the actual details:

In a bit of an ironic outcome, the U.S. government was unsuccessful in invalidating U.S. patents under €§ 101. It seems odd that the government issued the patents on the one hand, and later, tried to invalidate them.

Plaintiff, Science Applications International Corp. ("SAIC"), claimed that the U.S. government infringed four patents by entering into contracts with plaintiff's competitors for the procurement of specialized heads up displays ("HUD") and night vision goggles that allegedly use SAIC's patented technology. Defendant, the United States, moved to dismiss for failure to state a claim under Rule 12(b)(6), contending that Plaintiff's patents claim ineligible subject matter under 35 U.S.C. €§ 101.

The patents at issue here are U.S. Patent Nos. 7,787,012; 8,817,103; 9,229,230; and 9,618,752. The four patents form two patent families due to the interrelatedness of the applications.


These aren't software patents. They involve actual hardware. So ascribing this to a €§ 101 failure is misleading at best; this was a poor defense strategy/argument. We see lots of those.

"...the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC €§ 101/Alice)"Remember that just because a defendant invokes €§ 101 does not guarantee success. Sometimes €§ 101 just isn't relevant at all.

In other news (from another site), the same court everyone likes to cite in relation to Berkheimer v HP has just eliminated another bogus patent (again using 35 USC €§ 101/Alice). Not so exciting for patent maximalists, so of course they mostly ignored it. It's a €§ 101 affirmation:

If you want an example of the kind of patent-eligibility question that is now easy to resolve under the Alice abstract idea test, look to the Federal Circuit’s non-precedential decision in Move, Inc. v. Real Estate Alliance, No. 2017-1463 (Fed. Cir. Feb. 1, 2018) (opinion by Judge Stoll, joined by Judges Lourie and Wallach). In this case, the court affirmed a lower court’s summary judgment of invalidity under 35 USC €§ 101 of claims of two patents directed to computerized methods for locating available real estate, i.e., property for purchase.

[...]

The Court strictly followed the Alice/Mayo test for section 101, and noted that this test is not concerned with whether an artisan skilled in the art can perform the method claimed by the patent nor whether the claim language is sufficiently definite, novel, or non-obvious, but rather whether the character of a claim as a whole is directed to a patent-ineligible subject matter. Taken on the face of the claims and the specification, the Court found that SAIC's patents combine existing computer technology, sensors, and calculations in an unconventional way in order to reach a solution to the problem of alignment and consistently accurate display. Because SAIC did not stop at the concept of superimposition (in the abstract) but instead provided a solution for achieving accuracy and consistency in image registration, SAIC's claims are not directed to an abstract idea.


That's just more of the usual from CAFC. It's an Alice/Mayo test. More such examples were mentioned in recent days.

"PTAB Reversed Examiner's 101 Rejection of Robotic Software Claims," to name one example (but this is merely an examination stage refutation). A much higher level decision wound up as usual: "Zouli v Google (Fed. Cir. 2018); 101/CBM Case; CAFC Affirmed PTAB" (goodbye bogus patent).

"Another showing of disdain for the legal system or for justice itself?"Earlier today Patently-O was bashing rejection of patents using cartoons (those are typically anti-Alice). Another showing of disdain for the legal system or for justice itself? Every lost patent is a tragedy? Some politicians say "corporations are people" and patent lawyers certainly act as though "patents are people". Maybe one day they'll carry around billboards that say "patent lives matter".

This came a few days after a misleading headline from Patently-O's Dennis Crouch -- in a post which probably constitutes more of his PTAB baiting. How on Earth did he come up with a headline like "Climate Change is an Abstract Idea?"

Here's how:

In the ex parte appeal, the PTAB has affirmed the examiner’s rejection on eligibility grounds – finding that the claims were directed to the abstract idea of “selecti[ng] data (temperature, radiation) obtained from known and existing technology and then using the data to make a correlation.”

[...]

With respect to Alice/Mayo step-two (“something more”), the PTAB found that the improvement offered by the invention “is an improvement in the application of the mathematical relationship in determining substance concentration, which is, itself, an abstract idea.”

The decision would look like a good candidate for a civil action challenge or appeal – except that the PTAB also found the claims obvious.


So what? That's justice. It's not "death squads" as the maximalists want us to believe. It's just an invalidation of mere patents (or pieces of paper). No life or death at stake. Yet they use words like "kill".

"No life or death at stake. Yet they use words like "kill".""Software Patent Application Killed by the PTAB with 101/Alice," one of them said. He also said "smokes" (like "kills" and "survives"). "PTAB "Smokes" Another IBM Patent Application with 101/Alice," says the outline. Notice the terminology of war. They make it sound like some sort of massacre or genocide; never mind if this isn't criminal law or even immigration law but a bunch of mere patents. Another one about Section 101: "PTAB Affirms Examiner's 101 Rejection of Method for Measuring IR Absorption by Increasing and Decreasing Temp of a Body..."

"Quite frankly, we don't expect academic/scholarly honesty from these people. They're in this occupation for the money, not principles."At least he didn't call that "Climate Change" like Dennis Crouch did (perhaps hoping to insinuate, as before, that patent rejection is the moral/scientific equivalent of climate change denial).

Quite frankly, we don't expect academic/scholarly honesty from these people. They're in this occupation for the money, not principles. Here's an article by Charles Bieneman, who again uses the word "Survive" (war lexicon). Patents do not "survive" (the war narrative), they can just be upheld as valid or rejected as invalid. From Bieneman's article:

A little less than a year after finding that claims of U.S. Patent No. 6,474,159, directed to an inertial tracking system, were patent-eligible under the Alice abstract idea test, the Federal Circuit has affirmed a decision of the USPTO’s Patent Trial and Appeal Board (PTAB) that claims of the ’159 patent have not been shown to be obvious under 35 U.S.C. €§ 103. Elbit Systems of America, LLC. v. Thales Visionix, Inc., No. 2017-1355 (Fed. Cir. Feb 6, 2018) (precedential) (opinion by Judge Wallach, joined by Judges Moore and Stoll).

[...]

The Federal Circuit sided with the patent owner, whose expert had explained the benefits of the two-step-method over the three-step method. And arguments that the PTAB improperly failed to acknowledge expert testimony that one of ordinary skill in the art would have understood prior art as disclosing the recited integration were merely an attempt to create legal error by looking at PTAB statements in isolation.


Patent maximalists took note of the above decision and Janice Mueller‏ wrote: "Thales Visionix wins again! Elbit v Thales Visionix FedCir 2/6/18 affirms PTAB IPR determination that challenged claims of TV’s ‘159 patent would NOT have been obvious. TV’s expert witness testimony was critical in distinguishing prior art."

As expected, Patently-O wrote about it:

In its IPR final decision, the PTAB sided with the patentee – holding that Elbit had failed to prove that the challenged claims of Thales patent were obvious. On appeal, the Federal Circuit has affirmed – holding that “substantial evidence” supported the finding.

[...]

On appeal, the Federal Circuit held that the PTAB was the best position to determine expert credibility and thus declined to disturb those credibility determinations. Trs. of Columbia Univ. v. Illumina, Inc., 620 F. App’x 916, 922 (Fed. Cir. 2015) (“The PTAB [i]s entitled to weigh the credibility of the witnesses.”) The challenger’s attorneys attempted to support their case with an explanation that PHOSITA would understand the meaning the prior art – That argument was rejected on appeal, however, as attorney argument rather than evidence based. Rather, to make the argument, the party should have actually presented evidence on the level of understanding of a person of skill in the art.


As we said before, not every Alice/€§ 101 challenge/defense will result in patent rejection. It's not a magic wand and it only works where it is applicable. Alice is applicable to just about every algorithm and it should also be applicable where algorithms are being 'dressed up' as 'device' -- something which this new post deals with although it fails to grasp that "mechanical arts" is just a fancy term for machine. To quote: "A listener/reader pointed me in the direction of the recent oral argument at the Federal Circuit in Robert Bosch v. ITC. The case appears to concern patents of inventor/patent attorney Dr. Stephen Gass. The oral argument highlights that €§101/Alice arguments are now making their way into the mechanical arts."

"We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe)."Here in Europe and also in places like India and New Zealand loopholes were intentionally crafted to enable patenting of software by misportrayal thereof. Just claiming some algorithm to be executable/runnable on some particular machine does not change the fact that it's abstract.

We are still hoping that one day those loopholes too will be closed and patents granted owing to these loopholes be voided (like patents on plants and seeds in Europe). Over the past few decades patent scope had been stretched to the point where it became laughable. Some companies actually pursue patents on human genome as though it's an invention and last month CAFC ruled in favour of a patent on GUIs. We hope that the Supreme Court will overturn that latter decision.

Recent Techrights' Posts

Microsofters' SLAPP Censorship - Part 13 Out of 200: Abuse of Process to Make False Accusations of UKGDPR Violations
familiar barrister and same lawyers
What Puts the Brakes on GNU/Linux Adoption on Laptops and Desktops is Monopoly Control (or Monoculture) Over the Distros
Distros that adopt systemd are controlled by IBM and GAFAM
Layoffs in Twitter, Facebook, and Microsoft's LinkedIn
There are silent layoffs at Microsoft this month
We Don't Depend on Google and Don't Care for Google
We have our own site search and we don't depend on Google to bring visits/visitors to us
Facebook Layoffs Due to Enormous Debt, Nothing to Do With "Hey Hi" Slop
The lies about "hey hi" in relation to layoffs will only contribute to further public resentment towards: 1) the media and 2) all the slop.
 
Links 15/03/2026: WB Games Montréal Undergoes Layoffs, "Swiss Reject Cuts to Public Broadcasting"
Links for the day
Gemini Links 15/03/2026: Messages in Bottles and Audio Streaming in Lagrange for Android
Links for the day
Thrown Under the Microsoft Bus
Microsoft wants disposable contractors
Quitting IBM and "Rumors of an Upcoming RA [Mass Layoffs] in April 2026"
Blue layoffs or "RAs" were confirmed upfront by the CFO
GNU/Linux Distro Builders Barely Paid Enough to Pay Basic Bills, Chief of "Linux" Foundation (Not Even Using Linux!) Increases His Own Salary by Over 50% in 5 Years
Salaries or compensation correlate with the ability to exploit people, not to create things
The "Zero-Sum" Fallacy
Fallacies like "zero-sum" - especially in the context of foreign affairs including war - are utterly ruinous
A Happy Birthday to Richard Stallman
Richard Stallman will turn 73
Jürgen Habermas is Dead, But the Politicised, Inherently Corrupt, Corporatised Court for Patents That He Inspired Is Not
In the news throughout the weekend
Mountains of Abuses of Process by Brett Wilson LLP on Behalf of Americans and Sometimes at the Expense of British Taxpayers
a virtual "limited liability"
linuxteck.com FUD by LLM Slop, ubuntupit.com Passes the Slop Baton
Unless they get back to doing long-form authentic articles, as opposed to slop, no good will come out of it
Links 15/03/2026: New Shortages, Lynx Populations Depletion
Links for the day
Sruthi Chandran & Debian Diversity, Favoritism, Hidden Conflicts of Interest
Reprinted with permission from Daniel Pocock
software in the public domain
Reprinted with permission from Alex Oliva
Links 15/03/2026: Slop "Bubble Driving Interest in Chip Alternatives" and Wildlife Erosion Reported
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, March 14, 2026
IRC logs for Saturday, March 14, 2026
Change of Address at the Hired Guns, Address Removed
Companies tend to alter their 'shell structure' in anticipation of major action
The Good IBM Managers Have Flown Away, All That's Left is the Book-Cooking Loyalists
IBM is just cheating the SEC and shareholders. This seems to be the only thing IBM's management is nowadays good at.
Microsofters' SLAPP Censorship - Part 12 Out of 200: Months Ahead of Serial Strangler From Microsoft Who Helped Double the Lawsuits (Funded by Third Parties) as 'Revenge' for Exposing Crimes
In 2024 I sat down and wrote about what had been done to me and to my wife
Crime Comes in Many Forms
apparently the SRA is OK with stranglers of women in America bullying the media in the UK
commandlinux.com, linuxteck.com, linuxiac.com, and linuxsecurity.com are Slopfarms With "Linux" in Their Domain Name
once readers realise they read slop they immediately lose interest
Links 14/03/2026: Adoption of Slop Has Killed BuzzFeed, Russia Sees "Economic Gain From Iran War"
Links for the day
Patriotism is Conditional, If It's Unconditional, Then It's Like a Cult
My love for Software Freedom is only as strong as my love for Freedom of the Press
Links 14/03/2026: Mass Layoffs at Facebook ('Meta') and Sweeping Layoffs at Twitter (xAI), Social Control Media and Slop Are Only Debt
Links for the day
Wrong Time, Wrong Place (Digg)
Kevin Rose and Alexis Ohanian can relaunch Digg.com, but we doubt it'll work "this time for real!"
Universities Became Bad Places for Work
What happened to academia?
Reporting New and Suppressed Information is What Journalism is All About
In the domain of Free software, there are very few sites out there that offer exclusive coverage on community affairs and there are many gagging/censorship attempts
The Limits of Speech and the Rationale of Limitations
it seems to be part of an international trend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, March 13, 2026
IRC logs for Friday, March 13, 2026
Gemini Links 14/03/2026: Goodness, AD534 Multiplier Module, and Extroverts Online
Links for the day
Atlassian Corp: We're Doing Layoffs Because of "Hey Hi"; Wall Street: Atlassian Corp is Just a Failing Business
Don't ask "the media"
Microsofters' SLAPP Censorship - Part 11 Out of 200: Cannot Censor His Spouse, Accusations Are Repeated Today
He already has a history of threatening to sue gay people in America; he cannot take criticism too well
Price of Storage, Price of Energy... What Next?
EPO workers are going on strike because their salaries don't keep up with price increases and tech companies without connections in "the channel" face long delays, low availability, and high prices (no "bulk" purchases), which further solidifies monopolies.
Don't Forget Red Hat's RTO (Return-to-office) Layoffs
How many people still remember that Red Hat did the same thing?
Reminder: Microsoft silent Layoffs by RTO (Commute Time and Lack of Comfort/Work Satisfaction) Already in Effect This Year
It's difficult to measure how many employees have already "left on their own" due to the RTO policy
Founder of IBM Ventures Has Just Quit IBM
Some people leave IBM and many people 'leave' IBM
Signs of Impeding Mass Layoffs - Not Just Quiet Layoffs - at Microsoft
Beneath the surface there are waves of layoffs and even entire teams are let go
Career Science and Academia as Corporate Propaganda 'on Tap'
article about surveillance
Veteran GNU/Linux Journalist Jack Wallen Tries Geminispace and Likes It
It'll turn 7 some time soon
Scheduled Maintenance Tonight
There will be similar work early next week
"Alternative to Microsoft Office" Must Use Free/Open Standards/Formats for Real Sovereignty
It would make sense for the EU to invest in its own workers and its own software projects, more so now that there are hostile countries both to the east and to the west
IBM Has No Clue How to Integrate Companies Like Red Hat
IBM is failing to respect this company's culture
Fake Articles From Sites With "Linux" in Their Name/Domain Name
we can at least hope that linuxteck.com made a decision to quit slop
Links 13/03/2026: New US Weapons for Taiwan, Pakistan Air Strikes Hit Kabul
Links for the day
Gemini Links 13/03/2026: Exhaustion and Smartphone Addiction
Links for the day
Friday the 13th & Debian Developers afraid to nominate in DPL elections
Reprinted with permission from Daniel Pocock
Links 13/03/2026: Chatbot "Pentagon Contract" (Bailout) and Secret Service Ditches Slop Pusher
Links for the day
When Everybody Has a Right/Access to An Attorney/Lawyer (But Some Get Funding From Malicious American Corporations to Spend a Million Dollars on Many Lawyers and Several Barristers)
And send about 75 KG of legal papers to the residence of the "opponent"
European Qualifying Examination (EQE) Being Reduced to Pieces of Papers One Can Buy, Patent System Rapidly Losing Its Legitimacy
Welcome to the "new Europe"
Priorities in 2026
2026 is an interesting year
Willis Towers Watson (WTW) Producing More Propaganda for EPO "Cocaine Communication Managers"
The Local Staff Committee The Hague (LSCTH) has this new paper about Willis Towers Watson (WTW) and its annual EPO-sponsored propaganda, pretending all is well when things are clearly dire
Head of Microsoft Office and Microsoft 360 is Leaving Microsoft Amid Problems and Mass Layoffs
Microsoft is like a "legacy" company
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 12, 2026
IRC logs for Thursday, March 12, 2026
Gemini Links 13/03/2026: "Someone to Take Over Antenna" and Random Seed/RNG
Links for the day