Bonum Certa Men Certa

More SCOTUS Patent Cases on Their Way, But Nothing That Will Change 35 U.S.C. €§ 101/Alice

American pride



Summary: In spite of the continued assessment of patent law at the US Supreme Court (SCOTUS), things won't change in favour of the software patents lobby any time soon (if ever)

THE (arguably) most anticipated patent decision from SCOTUS is (probably) Oil States. Just under a year ago we saw yet more favourable (to patent reform) decisions from SCOTUS. Expect more of the same later this month or next month.



Another possible case (to reach SCOTUS) is a high-profile case regarding patents, but it not about patent scope (Alice has already settled much of that) or litigation venue scope (TC Heartland dealt with it last summer/spring). Earlier this week Patently-O wrote about it:

Helsinn’s petition for certiorari received strong support this week from a bevy of ten briefs amici. The missing element now is a call from the Supreme Court for the views of the Solicitor General (CVSG) and a resulting brief from the U.S. Government supporting the petition.

The Patent Act bars the patenting of inventions that were “on sale” prior to to the invention’s filing date. The question on appeal here is whether the AIA limited “on sale” to only include publicly available information — or instead do secret and confidential business deals also count as invalidating prior art (if ever discovered).


This case isn't of much interest to us, but still, it can help show where SCOTUS stands (or sits) on patents. Writing about this other case which isn't of much interest to us, SCOTUS Blog has just said:

On the first morning of the Supreme Court’s April session next week, the justices will return to problems of extraterritorial patent infringement, hearing argument in WesternGeco v Ion Geophysical Corp. For the third time in recent years, the court will consider Section 271 of the Patent Act. The statute was adopted in response to the court’s 1972 holding in Deepsouth Packing v Laitram Corp. that the Patent Act does not provide a remedy for overseas patent infringement. Deepsouth was an early example of a presumption against extraterritoriality, which has come to loom quite large in the Supreme Court’s recent jurisprudence. Traditionally, under that canon of construction, a statute applies only to conduct within the United States unless Congress explicitly indicates a contrary intent.


It doesn't matter what the outcome may be, this won't impact €§ 101/Alice in any way whatsoever. We hope nothing will change €§ 101 and as we'll show in our next post, the software patents lobby now attacks SCOTUS itself. Bullies will be bullies...

Michael Cottler and David Zimmer (Goodwin Procter) are meanwhile leaning on Berkheimer v HP Inc. (CAFC decision) in hope of weakening €§ 101. Like the software patents lobbying blog, "Bilski Blog", Watchtroll now latches onto two words, "well-known", in order to try to weaken the potency of 35 U.S.C. €§ 101 and prop up software patents. From their post:

In Exergen Corporation v. Kaz USA, No. 16-2315 (March 8, 2018), the Federal Circuit, in a split non-precedential opinion, affirmed a holding that Exergen’s claims directed to methods and apparatuses for detecting core body temperature were directed to patentable subject matter under 35 U.S.C. €§ 101. The Federal Circuit’s decision, like many of its recent €§ 101 decisions, raises many interesting issues, and we briefly address two of them.

[...]

And what is the difference between a technique that is merely “known” (e.g., a technique disclosed in that German thesis) and a technique that is well-known and conventional?


Aside from the fact that it's a non-precedential opinion, it barely affects anything at all when it comes to €§ 101 decisions. These people just scrape the bottom of the barrel, knowing that SCOTUS is fine with €§ 101 and is about to defend PTAB in Oil States.

Yesterday we saw Patently-O writing about another non-precedential opinion, this one regarding Funai. It's a new CAFC case where the "plaintiff’s four asserted patents to be invalid for claiming ineligible subject matter under 35 U.S.C. 101. On appeal, the Federal Circuit has affirmed."

With more background:

In a sweeping judgment,the N.D. Ill. district court dismissed Maxon’s infringement case — finding the claims of the plaintiff’s four asserted patents to be invalid for claiming ineligible subject matter under 35 U.S.C. 101. On appeal, the Federal Circuit has affirmed.

The patents here are all part of the same family — all directed to a seeming business method of providing an “electronic means of increasing user control over subscription entertainment content.” U.S. Patent Nos. 8,989,160; 7,489,671; 7,486,649; and 7,171,194. Although the bulk of the patents were issued pre-Alice (2014), the ‘160 was issued later in 2015. During prosecution, the examiner did reject the claims originally under Section 101 — that was overcome however by amending the specification to limit “computer-readable medium” to only non-transitory storage. Of course, that strict line-drawing does not work for the flexible eligibility analysis applied in court.


What is nice to see here is that despite the plaintiff's effort to make up for lack of quality using quantity (several patents, not just one), 35 U.S.C. €§ 101 thwarted them all. Unlike, say, what happened at the start of this year with Finjan.

Recent Techrights' Posts

Sounds Like IBM is Preparing for Mass Layoffs/Redundancies in Red Hat, Albeit in "PIP" (Performance Improvement Plan) or "Relocation" Clothing
This isn't the "old" IBM; they're applying pressure by confusion and humiliation
Gemini Links 17/04/2025: Role of Language and Back to Mutt for E-mail
Links for the day
 
Links 19/04/2025: "Infantilization at Big Tech" and LLM Slop Abused in Defiance of Workplace Rules/Policies
Links for the day
Gemini Links 19/04/2025: Palm Addiction and Real Experts
Links for the day
Egypt is Controlled by Google, Not Microsoft
Moving from Microsoft to Google is not the answer
Microsofters Say They Cannot Find a Job (That They Want) Because of Techrights, But Techrights Merely Reported on Their Behaviour
Quit pointing the finger at people who are recipients of abuse or merely mention the abuse
Free Software and Standards - Not Marketing Blitz - Needed Amid Growing Severity of Dependency on Hostile Suppliers (or Another Country's Sovereignty)
ZenDiS can be described as the "Center for Digital Sovereignty of Public Administration"
When It Comes to the Web, Google is Evil and It Destroys the Web's Integrity With LLM Slop
Even academia, which is meant to keep standards high, is being lured into LLM slop
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 18, 2025
IRC logs for Friday, April 18, 2025
Links 18/04/2025: "Fentanylware (TikTok) Exodus Continues", Chinese Weapons Allegedly in Russia Already
Links for the day
Gemini Links 18/04/2025: Price of Games and State of Tinylog
Links for the day
"Sayonara" (さよなら), Microsoft
Windows had fallen below iOS in some countries
Links 18/04/2025: Layoffs at Microsoft Infosys and Qt Becoming Increasingly Proprietary (Plus Slop)
Links for the day
Google News is Dying
treating MElon's algorithmic/biased site as a source of verified news
Microsoft's Attack Dogs Have Failed. Now What?
It would be utterly foolish to assume that Microsoft has any intention of changing
All Your "Github Projects" Will be Gone One Day (Just Like Skype)
If you have code you wish to share and keep, then start learning how to do so on your own
To Understand Who's Truly Controlling You Follow the Trail of Censorship (or Self-Censorship)
Do not let media steal and steer the narrative; CoCs are not about "social justice", they're about corporate domination
Fedora Already Lost Its Soul Under IBM
Fedora used to be very strict compared to many other distros and it had attracted very bright volunteers
Microsoft is Still Attacking GNU/Linux and the Net
Microsoft bribed the government using money that did not even exist
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 17, 2025
IRC logs for Thursday, April 17, 2025
Gemini Links 18/04/2025: Pinephone Pro and Linux is too Easy
Links for the day
Links 17/04/2025: Calling Whistleblowers at Microsoft, Slop Doing More Harm Everywhere
Links for the day
Links 17/04/2025: Russian Bot Farms Infect TikTok (Which US Government and SCOTUS Decided to Block January 19), US Hardware Stocks Crash Due to Tariffs
Links for the day
Gemini Links 17/04/2025: Sticking to Free Software, Smolnet, and Counting the Reals
Links for the day
Open Source Initiative (OSI) Privacy Fiasco in Detail: In Conclusion and Enforcement Action Proceeds Against OSI at the California Privacy Protection Agency (CPPA)
There's too much to cover in one single part
When You Fail to Filter Your Clients You End Up SLAPPing Reporters on Behalf of Bad People From Microsoft in Another Continent
“American Psycho”
Links 17/04/2025: LayoffBot and Tesla Cheats Buyers
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 16, 2025
IRC logs for Wednesday, April 16, 2025