Bonum Certa Men Certa

In Maxon v Funai the High 'Patent Court' (CAFC) Reaffirms Disdain for Software Patents, Which Are Nowadays Harder to Get and Then Defend

In the fight against (or to water down) 35 U.S.C. €§ 101 the patent microcosm coins inane if not laughable sound bites like "Berkheimer Effect"

FunaiSummary: With the wealth of decisions from the Court of Appeals for the Federal Circuit (CAFC) wherein software patents get discarded (Funai being the latest example), the public needs to ask itself whether patent law firms are honest when they make claims about resurgence of software patents by 'pulling a Berkheimer' or coming up with terms like "Berkheimer Effect"

ANOTHER week goes by and the USPTO is still rejecting software patents. Not all of them, but a lot of them. That might soon change, but not so radically. This post outlines some recent developments.



A few hours ago BGR published this report, revealing that Walmart is pursuing shoddy software patents but dresses these up as "blockchain" (the usual trick).

To quote BGR:

While the majority of the world is having fun watching Bitcoin go up and down faster than a yo-yo, companies are scrambling to get in on the craze. In some cases, that just means announcing a “pivot to Bitcoin” and watching your company die; in other instances, it means taking the underlying technology of blockchain and applying it to conventional retail.

[...]

Of course, Walmart isn’t new to the world of payment processing. It spearheaded a new payment protocol that was being developed a few years ago as a rival to Apple Pay and other mobile wallet systems, called CurrentC. That system relied on users scanning a QR code and then the cashier scanning another QR code off your phone screen, and was undeniably terrible. Luckily, the popularity of Apple Pay and Google Wallet made CurrentC DOA.


One week ago we wrote about this 'blockchaining' of patents; this is the first time we see Walmart being mentioned in this context.

It's not hard to understand why Walmart relies on hype like blockchains. It's one pretty trivial way to make old ideas sound more innovative. Maybe when the hype tapers off they'll just move on to the next hype wave. Maybe they'll just call servers "cloud", databases "blockchain", algorithms "AI", and surveillance "smart". It's all about 'fashion' and marketing.

When it comes to software patents, nothing has inherently or profoundly changed. The Office and patent courts still mostly reject these. As a new example of software patents being rendered invalid (under the Mayo/Alice test and 35 U.S.C. €§ 101) see this short article by Mike McCandlish. It's about Funai and Maxon:

Affirming a motion to dismiss, the Federal Circuit found claims from four patents, directed to “electronic means of increasing user control over subscription entertainment content,” patent-ineligible under the Mayo/Alice test and 35 U.S.C. €§ 101. Maxon, LLC, v. Funai Corporation, Inc., (Fed. Cir. April 9, 2018) (non-precedential).

[...]

In step 2, the court agreed with the district court that the claims did not provide an inventive concept. The claims recited only generic computing processes using functional language. The claimed computer elements such as “computer-readable medium,” “logic,” “processor,” and “transceiver” were also generic, with no distinguishing limitations. The ordered combination of the claimed elements did nothing to elevate them to an inventive concept.


For the Federal Circuit to do this is noteworthy, even if the decision is non-precedential. Cheryl Beise wrote that "dismissing a patent infringement suit filed by Maxon, LLC against several smart television manufacturers on the ground that the asserted patents [...] an abstract idea that lacked an inventive concept..."

She too mentioned that it's "a nonprecedential decision." To quote:

The federal district court in Chicago did not err in dismissing a patent infringement suit filed by Maxon, LLC against several smart television manufacturers on the ground that the asserted patents—describing an electronic means of increasing user control over subscription entertainment content for smart TVs—were invalid as directed to an abstract idea that lacked an inventive concept, the U.S. Court of Appeals for the Federal Circuit has held in a nonprecedential decision.


Watchtroll wrote about it almost 12 days late:

On Monday, April 9th, the Court of Appeals for the Federal Circuit upheld the invalidity of a series of patents asserted against the American subsidiary of Japanese consumer electronics firm Funai. The patents, owned by Illinois-based Maxon, LLC, covered electronic means for improving user control over subscription entertainment content but the claimed technologies were deemed to be invalid under 35 U.S.C. €§ 101, the basic statute governing the patentability of inventions. The decision was issued by a panel comprised of Chief Judge Sharon Prost and Circuit Judges Todd Hughes and Kara Stoll.


What's noteworthy here is that the Federal Circuit sticks to its guns, no matter what the patent microcosm keeps trying to tell the public. Several days ago we saw Steven M. Jensen and Jonathon P. Western spending more money promoting loopholes; we covered this before (rebuttal), but this has just been reposted by sites of the patent microcosm [1, 2].

The patent microcosm generally likes to name-drop Berkheimer and Aatrix these days; we wrote nearly a dozen rebuttals on this topic alone (those two cases), but here we see the same thing brought up again. The patent microcosm says that an "opinion has had a particularly adverse effect on so-called “software” enabled patents; the buzz being that the very concept of “software” patents is now dead."

They're not dead per se, but the low chances of winning cases with software patents makes them too risky to assert and thus unworthy of pursuing in the first place.

Here is how the patent microcosm put it:

It seems that Douglas Adams has a great many fans in the universe of IP law. While he almost certainly didn’t have patent issues in mind while penning his cult classic, he was nevertheless prophetic of our current situation. In 2014, the Supreme Court issued its landmark Alice decision, which had the effect of significantly raising the bar for “patent eligibility.” The opinion has had a particularly adverse effect on so-called “software” enabled patents; the buzz being that the very concept of “software” patents is now dead. As a general proposition, that statement is simply wrong. However, it is true that many software patents—primarily those issued before the days of Alice—are now being invalidated for claiming only “abstract” ideas.

But what exactly does it mean to be “abstract”? Because of the amorphous state of patent “eligibility” standards, the decisions invalidating “abstract” patents largely lack consistency or predictability. I have listened to numerous District and Appellate Judges as well as new USPTO director Adrei Iancu suggest, or say outright, that the current standards for defining an “abstract idea” are a virtual black hole. I completely agree.


They can't even spell Andrei Iancu right; we keep seeing law firms failing to name him correctly (variation of mistakes) while pressuring him to embrace patent maximalism.

Moving on a bit, watch Charles Bieneman trying to 'pull a Berkheimer' because he refuses to tolerate the de facto 'death' of software patents in the US.

He comes up with the term "Berkheimer Effect":

A complaint for patent infringement has survived a Rule 12 motion to dismiss by making specific factual allegations to support arguments that the claims met the patent-eligibility requirements of Alice and 35 U.S.C. €§ 101. Sound View Innovations, LLC v. Hulu, LLC, No. LA CV17-04146 JAK (PLAx) (C.D. Cal. April 11, 2018). The patents at issue related to systems for operating and managing databases. (US Patent Nos. 5,806,062; 6,125,371; and 9,462,074.) This case is another sign that the Federal Circuit’s early-2018 decisions in Berkheimer v. HP, Inc. and Aatrix Software, Inc. v. Green Shades Software, Inc., may pose a new obstacle for parties seeing to invalidate patent claims under Section 101 – especially defendants filing motions at the pleadings stage in patent infringement lawsuits.


Bieneman wrote about another €§ 101 case:

Providing a common data format for “out-of-band network management” is patent-eligible, said a court in denying a motion to dismiss under FRCP 12 and 35 U.S.C. €§ 101. Avocent Huntsville LLC v. ZPE Systems, Inc., No. 3:17-cv-04319-WHO (N.D. Cal. March 21, 2018). In applying the Alice patent-eligibility test, the court thought that the claims of U.S. Patent Nos. 7,478,152 and 7,853,682 fell under the umbrella of cases like Enfish, LLC v. Microsoft Corp. (Fed. Cir. 2016), and were distinguishable from cases in which claims were found patent-ineligible, like In re TLI Commc'ns LLC Patent Litig. (Fed. Cir. 2016), and Digitech Image Techs., LLC v. Elecs. for Imaging, Inc. (Fed. Cir. 2014).


A short article by Mark St. Amour, posted in the same site (Bieneman's), mentions Baker v Microsoft. This, for a change, isn't about €§ 101 but about "the importance of prosecution history," which is explained contextually as follows:

The Federal Circuit has again highlighted the importance of prosecution history for patent claim interpretation. In Baker v. Microsoft Corp., No. 2017-2357 (Fed. Cir. Apr. 9, 2018) the Federal Circuit upheld a district court claim interpretation and grant of summary judgement of non-infringement of US Patent 5,486,001.

Defendant Microsoft manufactures and sells various computing devices, peripheral devices, and software. For example, Microsoft sold a computer system that included a camera as a peripheral device.

[...]

Key to this case was the court’s reliance on the amendments to the claims and the remarks made to distinguish the amended claims from the prior art. Accordingly, such considerations that may arise during litigation of a patent should be kept in mind during prosecution, especially in the case when arguing features that distinguish from the prior art, but may not be explicitly be claimed. For example, when remarks accompanying an amendment describe the amendment as being narrower than a broadest reasonable interpretation.


If one assesses prosecution history of entities that wield software patents, a lot of these are patent trolls. It's not exactly surprising considering the nature and breadth of patents on algorithms. With patents on medicine (chemistry), for instance, there might be just one or two large companies one can sue, due to the logistics of drug production. These companies are large enough to fight back and these companies are not likely to just shell out 'protection' money to trolls. There are no 'indie' drug producers operating from one's basement, whereas software development is inherently different. The US patent office ought to recognise this and put an end to the lunacy which is patents on software. They're economically unsound.

Recent Techrights' Posts

The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Links 25/07/2025: NOAA Cuts Endanger Lives, "Europe's Self Inflicted Cloud Crisis"
Links for the day
 
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol
New US Editor in The Register is 84% Microsoft/Windows Booster
It'll be worrying if it carries on like this
Links 25/07/2025: Slop Blunders and China Has Code of Conduct for Lawmakers in HK
Links for the day
Gemini Links 25/07/2025: Some Books and Babies and Capital
Links for the day
They Try to Lecture Us on Ethics
They even removed "master" from Microsoft GitHub
The Future of the Web is One Rendering Engine or 'Flavours' of Chrome
The future of the Web does not look bright at all
Best Sites Are Not Optimised for Any Browser, They Work Equally Well With All of Them
Red Hat (IBM) is making rubbish sites
YouTube is a Spamfarm, Slopfarm, and Clickfarm (a Lot of Numbers There Are Fake)
Those who don't fake look unpopular and unimportant
We Don't Do JavaScript and Pages Are Small
Thankfully Gemini Protocol has nothing like JavaScript
'Tech' is Not Technology
Some people use terms like 'Old Tech'
IBM's Debt Rose by Almost 10 Billion Dollars in the Past 6 Months Alone
The "hey hi" circus is coming to an end
Yes, Master
Gaslighting by actual racists
Microsoft Bribes and Buys Politicians to Tell Europe What to Do About Free Software (Which It's Attacking)
Microsoft: we speak for the thing that we are attacking! Follow the money...
Making Backups Quickly and Reliably
Backups are imperative, more so in an age of uncertainty, unpredictable weather, and worsening standards (quality of products going down while prices go up)
Techrights Investigation: Estimating the Point in Time LinuxIac Turned Into LLM Slop (Part of the Time)
Bobby Borisov got lazy
10th Month, Ten Weeks From Now, at Ten AM
In Wentworth Institute of Technology in Boston
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 24, 2025
IRC logs for Thursday, July 24, 2025
A Nadella Memo Distracts From Microsoft's Cheapening Of the Workforce
Right now the "MSM" (mainstream media) is flooded/overwhelmed by garbage pieces that relay lies for Nadella
Vanishing Faces of GNU/Linux
Free software projects do not depend on any one person or company to still exist
Microsoft Says It Lost 400 Million Windows Users, Now It's Waiting for GNU/Linux to Stop Booting on 'Old' PCs
When it comes to Windows, Microsoft is fully aware of the issue and statements it made earlier this summer suggest it lost 400 million Windows users
Slopwatch: LinuxTechLab, linuxsecurity.com, LinuxIac, and More
Also: The Register's Microsoft agenda (new editor)
Gemini Links 25/07/2025: Gemtext Aware Titan Editor and Gemini Protocol Comeback
Links for the day
Links 24/07/2025: Convicted Felon Quits UNESCO, "Vibe Coding Goes Wrong", and Signalgate Gets Worse
Links for the day
Gemini Links 24/07/2025: Forgejo Woes and Smolnet Directory Week
Links for the day
Misinformation is Not Intelligence
It's low-grade plagiarism and it fails to show any signs of intelligence
Links 24/07/2025: Storage Tapes Still Kicking, Windows TCO 'on Steroids' (Microsoft-Induced Catastrophes)
Links for the day
Bobby Borisov (LinuxIac) Has Apparently Begun Experimenting With LLM Slop, So We Cannot Trust LinuxIac Anymore
So did LinuxIac become a slopfarm? Maybe not yet, but it's getting there
Informa TechTarget's ITProToday is Becoming a Slopfarm Generated by Microsoft Chatbots
Busted.
'Tech' Gimmicks Are for Advertising, Not for Usability
In the case of Microsoft, they latched onto slop
BetaNews Sacked Brian Fagioli and Deleted His Comments, But He Still Tries to Use the "BetaNews" Brand for Self-Affirmation
Fagioli takes the work of other people
[Meme] Hard to Be a Better Person?
Sooner or later they'll realise that for each pound I spend they need to spend about 1,000 times more
The LLM Con Artists Are Highly Destructive
Who will ever be held accountable for this scam?
Too Bribed by Microsoft to Move to Free Software?
Microsoft lies and Microsoft bribery (in politics)
New US Editor for The Register is a Microsoft Booster
"Avram Piltch has served as US editor for The Register since July 2025."
Microsoft Hiring European Politicians is Another Form of Bribery; There Should be a European Investigation
When Microsoft bribed people in Europe for OOXML (there's no denying this!) a European government delegate said that Microsoft operated like a cult
Reda Demanded That FSF Removes Its Founder, Now Reda Works Directly for Microsoft
A sellout and a traitor, first working for GAFAM, now Microsoft
PCLinuxOS is Raising Money to Support Development After Fire Incident at the Host
PCLinuxOS has not had announcements lately
Speed of the Site Should be Better Now
The "bot attacks" impact the speed of the sister site too
Getting More From AnalogNowhere
Recently we used many images from AnalogNowhere
Microsoft, Microsofters and 'Secure' Boot Shills Already Storming the LWN Report About Expiring Certificate, Shooting the Messenger
LWN has clearly stuck a nerve
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 23, 2025
IRC logs for Wednesday, July 23, 2025
Disable "Secure" Boot Today (the Only Better Time to Do So Was Yesterday)
Don't trust anything Red Hat tells you about security
Links 23/07/2025: Windows Killed Company After 150+ Years, US Government Mimics Russia's Attacks on the Media
Links for the day
Freedom Generally Wins at the End, History Shows (But It's Constantly Attacked, Too)
At the moment people realise "Linux" (e.g. Android) isn't enough to guarantee any freedoms
Over 3 Months Later Brett Wilson LLP Still Unable to Recruit a Media Lawyer?
"Immediate start", but not found... still unfilled