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

Next Month 'New Techrights' Turns Two
Next month, on the fourth week, it'll be 2 years since the migration
Online Safety Act Tries to Accomplish the Impossible
All I can say is, "good luck with that!"
Microsoft Windows "Market Share" Measured Around 2.7% in Iraq, Plunges to 6.5% in Saudi Arabia
Microsoft isn't on the agenda in Iraq
 
Efficiency is Good, So Why Won't Governments Cull LLM Companies Using Stronger, Stringent Policies?
Like every bubble that ever existed, including some recent ones, an end will come
The Defunct Site LinuxConfig Has Published a Fake Article About Richard Stallman Using LLM Slop, Which Stallman Calls "Bullshit Generator"
Worse yet, it is writing using a "Bullshit Generator" (the term used by Stallman) about Stallman's health
Microsoft Windows Falls to All-Time Lows in Morocco and Algeria
About 70% or even less
StopGenAI in the Cyber Show (C|S)
covering a theme that we too covered a lot lately
Gemini Links 03/08/2025: Once-a-Decade Couch Shopping and Blessings in Disguise
Links for the day
Links 03/08/2025: Political Catch-up, Global Warming, and Hunger
Links for the day
Brittany Day Entered LLM Slop Into LinuxSecurity.com and Something Hilarious Happened: The Site is "Exploited"
The brainless, effortless copypasta of "slop artists" shows its limits
Links 03/08/2025: Microsoft Exchange 0-day Exploited and Avoidable Nuclear Escalation
Links for the day
Definitely Not a Ponzi Scheme
Bitcoin v Microsoft
The Electronic Frontier Foundation (EFF) is a Billionaires' Lobby
Billionaires that control tech companies
Microsoft Borrows 3 Billion Dollars Per Month, a Company Truly Worth Trillions Would Not Do This
if Windows (and Office) "market share" fell from about 90% to barely 30%, how come Microsoft is now "valued" at 20 times more?
It's Even Worse Than Microsoft Lunduke Puts It; GNOME is SLAPPing Journalists
In our experience, GNOME is so malicious - some elements of it in particular - that it would launch multiple simultaneous SLAPP campaigns not only against journalists but also their spouses
GNU/Linux Adoption Reaches All-Time Highs in Chile, statCounter Indicates
This month marks 4 years since Vista 11 came out (as a fake "leak") and some surveys still measure its adoption at less than 40%
Slop Will Not Change the World
Some of us grow up sooner and leave that nonsense behind (or altogether avoid/skip it)
Gemini Links 03/08/2025: Nostalgia and TOFU
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, August 02, 2025
IRC logs for Saturday, August 02, 2025
Google Throwing Out the Search Engine With the Bathwater is a Complete and Utter 'Shi---ow' as the Company Drowns in Debt, Layoffs, and Worse
The mainstream media almost never mentions GAFAM debt
Operating Systems' Statistics in New Zealand: GNU/Linux Up, Windows Down to All-Time Lows
Remember all this when the media says that Microsoft became like 10 times more valuable in those 15 years (from 400 billion to 4,000 billion in alleged "worth")
GNU/Linux Share in Sweden Has Doubled Since PewDiePie, A Swede, Recommended It
months ago he moved to GNU/Linux, then told others to consider doing the same
GNU/Linux Hits Record High in Portugal
GNU/Linux picking up in Portugal
Gemini Protocol is Not Dying, It's Growing
When people say things like "Gemini Protocol is dying" the data does not support them
GNU/Linux is Thriving This Summer
It is meanwhile acknowledged, even by Microsoft pushers, that many GNU/Linux PCs will get sabotaged next month
The End of Microsoft's Reign in Spain: Windows Falls to All-Time Lows in Spanish Web Traffic
Windows sank to new lows in Spain
The Bots Never Sleep: In The Weekends, Slopfarms Dominate Google News, Majority of Entries in Google Are Fake Articles About 'Linux'
Google is fast becoming an ocean of plagiarism; the same goes for Google News, which was supposed to have extra quality control
Russia's Yandex Has Caught Up With Bing in Terms of "Market Share"
Microsoft has been firing loads of Bing workers for over 2 years already
Canada: GNU/Linux Up to Records Highs, Windows Down to Record Lows
Microsoft already announcing some plans to shut down Vista 11
Gemini Links 02/08/2025: Transducers in Typed Racket and American ISPs
Links for the day
Links 02/08/2025: Microsoft Already Kills Vista 11 SE, Smartphone Sales Down, Truth Gets "You're Fired!" in the US
Links for the day
Video: The Rise of GNU/Linux and Free Software as Seen by RMS in 2004
DTP's founder argued that when Windows goes below 85% "market share", it'll lose its grip in the monopoly sense
Russia: GNU/Linux Rises to Highest Adoption Level Since Invasion of Ukraine
Moving up in the north
Microsoft's Latest Financial Report: We "Gained" 300 Million Dollars in "Goodwill" and Liabilities Grew by 32 Billion Dollars
Microsoft's debt has reached an all-time high
The Register US = The Register MS
Formerly The Register UK
Weeks After Microsoft Shut Down Its Operations in Pakistan Windows Falls to All-Time Lows
Only less than a month ago it was quietly revealed, based on laid-off staff, that Microsoft shut down in Pakistan
Criminal Behaviour is the Standard Operating Procedure at Microsoft
In the future I'll be able to tell how, when dealing with SLAPPs from Microsofters, their Microsoft services failed me and sometimes even blocked my contacts
GNU/Linux Rises to All-Time Highs in Europe
many people will get fired for buying Microsoft
All-Time Highs for GNU/Linux on the Client Desktop/Laptop, Based on Steam Survey
GNU/Linux rose to 2.89% in Steam
Links 02/08/2025: Blaugust 2025 and "Russia Declares Navalny Memoir ‘Extremist’"
Links for the day
Free Software is Not a Business Model
Go ahead, ask your friend, "how do you plan to monetise your children?"
When (Almost) One-Man Operations Are Disguised as Medium-Sized Companies
the CEO hides in the US (hiding from his ex-wives, 4 daughters from those wives, and Sirius staff that he defrauded)
LLM Slop Harms Real Literature, Real Web Sites, Real Journalism
LLM slop is a parasite and it'll run out of legitimate outputs
Upcoming OSI Scandal Series
The OSI is a rogue actor because it serves Microsoft in exchange for money
Slopwatch: The Issue Persists, But the Consensus in the Media Changes as Google Enrages It With LLM Plagiarism
We've meanwhile assessed the latest output from Linuxiac
Microsoft Actually in Trouble, Microsofters Unable to Obey Judges' Orders
For the second time in a week, Microsofters are unable to obey orders
IRC Proceedings: Friday, August 01, 2025
IRC logs for Friday, August 01, 2025
Over at Tux Machines...
GNU/Linux news for the past day
Links 02/08/2025: İstanbul Retail Inflation Reaches 42.48%, US FBI Opens Office in New Zealand
Links for the day
Gemini Links 02/08/2025: ZFS, LLM Hype, and Fake Modules
Links for the day
Links 01/08/2025: Health, Conflict, and Attacks on Freedom of the Press
Links for the day
Microsoft's Debt Exploded by 15.4 Billion Dollars in the Past 9 Months Alone (Despite All the Layoffs)
As of minutes ago, at 6PM on a Friday, the numbers are made public
Meeting (Webchat) With Maria Arranz Gomez, Florian Grundies, Jürgen Janda and Konstantinos Kortsaris Confronts EPO Management About Breaking Promises and Crushing Workers
The lack of consistent messages suggests plans other than what's advertised and the lack of consultation (secrecy) likewise
Links 01/08/2025: "The Great British Firewall" and U.S. Army Sponsors Palantir
Links for the day
For Second Day in a Row, Top Story in The Register MS is "Microsoft Says"
The editor in chief exercises control over everybody else
LLMs as Attack Method Against Free Software and Programming
DDoS in "hey hi" (slop) clothing
Stability and Reliability, Backward Compatibility
I don't fancy relying on social control media as "sources"
What "the News" Looks Like in 2025
The "says" (or "sez") phenomenon
History Will Be Distorted, Sometimes Intentionally, Under the Guise of Intelligence (Manipulated/Curated Slop)
Militarised misinformation or military-grade chaff is a national security threat, even domestically
Financial Engineering Companies: A Company Worth 4 Trillion Dollars Would Not Borrow 100+ Billion Dollars at Interest Rates Like Today's
Many headlines perpetuate the lie Microsoft had just 2 waves of layoffs
Microsoft is Googlebombing "Linux" While Paying Former News Sites to Publish SPAM
How much lower will IDG sink?
Google as a 'Bullshit Generator' Disguised as Intelligence
It'll probably cause Google to get sued a lot, both by individuals and companies
As Expected, Google in the UK Now Experiments With Slop Instead of Web Search
At this point more people ought to stop and think: Does Google's search engine deserve trust?
The Data You Don't Give Away is Your Advantage
stop sharing data that does not need to be shared
Being Obedient or Doing the Right Thing
The world always changes for the better because of people who think "Outside the Box", not the cogs
Gemini Links 01/08/2025: Happy Hacking Keyboards and New Gemini Arrivals
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 31, 2025
IRC logs for Thursday, July 31, 2025