Bonum Certa Men Certa

The Patent Microcosm is Spinning Berkheimer Again, Hoping to Compel Politicians to Undermine Section 101 and Promote Software Patents

Patently-O has basically become another Watchtroll

Pulling a Berkheimer



Summary: Dennis Crouch, who has his cards (or pot of gold) with the patent microcosm, steers media towards ludicrous suggestions and misleading headlines; the overall objective is to water down Section 101 and dilute the patent system, bringing rise to more patent litigation (especially with abstract software patents)

THE resurrection of Berkheimer is something we've grown rather tired of; the patent microcosm, seeing that the USPTO is now headed by Iancu, tries to convince him to water down guidelines by citing Berkheimer. As for the courts? Like we've been showing for a couple of months, they barely care about Berkheimer as a precedent. They've just move on basically.

Prominent patent maximalist Dennis Crouch is still trying to 'pull a Berkheimer' to undermine the Patent Trial and Appeal Board (PTAB), Federal Circuit (CAFC) and Section 101. He has been doing that for a long time.

Several days ago he wrote about some case, trying to solicit oppositions:

Now, the Federal Circuit has denied both petitions with opinions by Judges Moore, Lourie, and Reyna. The exact vote was not released, but at least 7 judges voted to deny.

[...]

Clearly Judge Reyna is correct in this aspect of his analysis even if I disagree with his ultimate conclusion that eligibility is purely a question of law.

I would look for Supreme Court petitions in both cases framed along the lines of: pro-patentee Federal Circuit judges seeking to undermine consistent Supreme Court precedent most recently restated in Alice and Mayo.


It's about CAFC and the Section 101 question. They basically don't want to meddle in it, but this has already been spun by lawyers' media. They contaminate information sources.

Judge Alan Lourie said: “Section 101 issues certainly require attention beyond the power of this court” (that's all).

Open for interpretation?

Over at Law.com, for example, Scott Graham wrote:

The U.S. Supreme Court’s Alice opinion on patent eligibility got a formal haircut Thursday.

The U.S. Court of Appeals for the Federal Circuit announced that it’s sticking with two February decisions that limit the kinds of patent cases that can be decided early in litigation on a Section 101 motion.

Only one of the court’s 12 active judges dissented from the denial of en banc review in Berkheimer v. HP and Aatrix Software v. Green Shades Software, though two others also called on Congress or the Supreme Court to intervene.



They're just nitpicking dissents and words (like Crouch). These patent radicals have always twisted some words in an effort to bring software patents back to the US. What the judges said does not match the headlines at all. Here's Crouch seemingly quoting Alan Lourie as saying "Call for Congress to Act" (there was no such call!). To quote:

As part of the court’s en banc denial in Berkheimer v. Hp Inc., 2018 U.S. App. LEXIS 14388 (Fed. Cir. 2018), Judges Lourie and Newman joined together in an interesting concurring opinion that argues for some higher power to revisit the doctrine of patent eligibility to provide clarification and policy guidance.

[...]

For a federal appellate court, there are typically two such “higher authority” mechanisms for altering the law: (1) Supreme Court reinterpretations and (2) changes in the law itself. In the opinion, Judge Lourie rules out a reinterpretation by the Supreme Court as insufficient — thus leaving us with changing of the law.


Well, “higher authority” does not mean Congress and Crouch -- like a little child -- has already begun to play with Google in an effort to find artistic interpretations for that term. It does not mean Congress. Ryan Davis, over at Law 360, followed that up by writing:

The full Federal Circuit voted Thursday not to rehear two cases seen as making it harder to invalidate patents for claiming ineligible material under the U.S. Supreme Court’s Alice test, saying the holdings that patent eligibility can involve factual issues follow established litigation rules.

The court, with only one judge dissenting, denied petitions for en banc rehearing by HP Inc. and Green Shades Software Inc. in two separate cases that shook up patent law when they were decided within days of each other in February.


So that's about it. Nobody said Congress should intervene or anything like that. It's pure lobbying by Crouch and his ilk. His blog colleague, David Hricik, has just posted for someone else this attack on Section 101 because the patent radicals of Patently-O (see the nature of the comments there) don't accept courts' judgements. Instead, as in this latest piece, they smear Justices as "judicial activism" (yes, activism! This is right out of Donald Trump's playbook!) for basically applying the law, assuring patents validity and quality. They're becoming like another Watchtroll now. To quote:

Over on the main page, Dennis has pointed out that a cert petition including citations to my posts here about why Section 101 is not a “defense” to infringement, and to the recent CAFC cases about why 101 includes factual inquiries. This rant is about those issues.

[...]

Where the judicial activism of the Supreme Court has put our country is is in a dire place. We are in a time when innovation is king. China has more patents pending than the U.S. Around the country, I have heard executives from all types of industry state that our system has made patenting of dubious value. The data shows that the Supreme Court’s rampant activist approach — undertaken perhaps in a noble effort to get rid of some (too many) stupid patents (and combined with IPRs) — has made our patent system weak, eliminated key incentives to innovate, and, most fundamentally, ignored the changes Congress made back in 1946 to stop this nonsense.


Patently-O is proving to have become a rather toxic site with an agenda. Founded by a scholar, it certainly seems to be just an "activism" site of the patent microcosm, very much akin to Watchtroll.

Recent Techrights' Posts

Red Hat Layoffs Expected in 5 Days (Monday)
"They will announce and proceed with the cuts on 08/11."
They Want You To Talk About Trump or 'The Other Bill' in Relation to Trafficking of Underage Girls for Sexual Exploitation
Just something we wanted to say...
How to Quadruple Your "Goodwill" Value and Grow Your (Wall) Street "Value" From $152B to $4000B Without Producing a Single Successful Product/Service
The longer it goes on for, the bigger the implosion will be
Staying Productive
Two very reputable institutions recently told us they now reckon Microsoft is somehow funding those SLAPPs against us
66 Countries Where More People Use iPhones (or iPads) Than Microsoft Windows, According to statCounter Data
a list of countries where iOS now exceeds Windows
Windows All-Time Lows, Android All-Time Highs in Kuwait
New lows for Windows can be found in many countries this month
 
August Hits Microsoft Hard: Dead Divisions, Dead Products, Layoffs Again (on Week 1)
Microsoft's debt is soaring
Slopwatch: Slow Day for LLM Slop, Serial Sloppers Still at It in Their Slopfarms
The Web would be better off if those sites went offline
Links 06/08/2025: Substack in Trouble, Slop Sceptic Shira Perlmutter Seeks Emergency Injunction Pending Appeal
Links for the day
Gemini Links 06/08/2025: Pinephone, Reverse-Engineering, and More
Links for the day
Links 06/08/2025: Faked Values of Slop Companies and Government Bailouts
Links for the day
FOSSY 2025 Conference Safety
The GAFAM-funded FOSSY 2025 is over
Microsoft's Favourite Pay-to-Say 'Analyst' Firm Has Just Collapsed
'Analysts' that helped propel Microsoft to fictional values akin to Ponzi schemes
Ask Google (Jeeves)
What does Google "know", not know, or would rather forget (or embellish)?
A Blow for Patent Ambitions of Bill Epsteingate
It's about money
Apple's iOS Bigger Than Microsoft Windows in Many Countries
This ought to alarm Microsoft
The Mainstream Media Talks About Spotify Share Price and Price Hikes, Not Its Debt Increasing by About 33% in Just 12 Months
Spotify isn't a company in good shape
New "US Editor for The Register" is 80% Microsoft and Windows
they typically just treat Microsoft like the "Holy Grail" of "IT"
Microsoft is Apparently Sending Gag Orders or NDAs to Staff That Got Laid Off (“We were told not to post on LinkedIn. Not to say anything.”)
The main lies we keep seeing
Richard M. Stallman Has Published AI Memos Since 1980 (45 Years Ago)
Back when the term AI actually meant something
Gemini Links 06/08/2025: BitTorrent and Feedly Bots
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, August 05, 2025
IRC logs for Tuesday, August 05, 2025
Openwashing Slop... Using Slop!
So get ready for "open" "hey hi" with its proprietary models to engage in openwashing, helped by serial sloppers who use the LLMs to produce fake 'articles'.
On "Tragedy of the Commons in the Production of Digital Artifacts"
There's a better way to do things. None of that should involve GAFAM.
Gemini Links 05/08/2025: Opel Zoo near Frankfurt and Alhena 5.2.5
Links for the day
The Inflammatory Influence of Social Control Media Giants
CPC's ByteDance says it's cool
Microsoft v Planet Earth
Is Microsoft profitable?
IRC Turns 37
Internet Relay Chat (short: IRC), which started in 1988, turns 37 this month
Shortly After a Microsofter Took Over The Register as Editor in Chief Microsoft Tim (Tim Anderson) is Back and It's Still Microsoft Propaganda, Sometimes Funded by Microsoft
Notice his focus
Stricter Enforcement of Worker Adjustment and Retraining Notification (WARN) Act is Sorely Needed
Who's keeping track anyway?
Calling Plagiarism "Intelligence" is Pure Genius, Brilliance!
One thing to "like" (or dislike) about LLMs is how they're falsely marketed using various buzzwords
Geminispace Promises Simplicity But Also Provides a "bunch of forums that get flood-filled by agitation against the very essence of Gemini itself"
claims of stagnation in Geminispace started because of a person who spent a long time agitating against GNU/Linux as well
Zimbabweans Aren't Into Windows or Microsoft
This cannot be good news for GAFAM
Microsoft's Washington Layoffs Aren't Everything, They're Definitely Not Happening in Just One State in the US
Washington is just more strict with WARN notices
Gemini Links 05/08/2025: Lagrange v1.18.6, No Stagnation in Geminispace, and Fake Coding (Slop)
Links for the day
The Register's Editor in Chief (Who Left for Google) Told Me "AI" Was a Bubble, But Now The Register Gets Paid to Participate in Inflating This Bubble
A lot of the online media is a scam
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Some Cola Formulas Aren't Secret, But the Barrier is the Branding
That's the power of the channel/distribution, marketing, and brand recognition (accomplished through endless marketing)
Introducing Mission:Libre and FreeXR (and BreakXR)
efforts that accompany the foundations put there by the Free Software Foundation in 1985
Slopwatch: WebProNews, LinuxSecurity, and Some Success Stories
Google News still has a slopfarm issue
Links 05/08/2025: Hey Hi (AI) Passing Fads and GAFAM "Embracing the Military"
Links for the day
Links 05/08/2025: Samsung and Microsoft Layoffs
Links for the day
Rumours of Mass Layoffs at Red Hat Next Week (August 11th, 2025)
The eleventh means next Monday
IBM is Shutting Down (Piecewise)
IBM is basically being liquidated
The Debian Language Police Department (PD)
"there has never been complaints about anyone that was offended by this -off package"
Tesla's Debt More Than Doubled in 2 Years and the Company Will Operate in the Red (at a Loss) Quite Soon
If your first-quarter net income is $409 million and you borrow billions from banks, plus interest to pay on those loans, then you're not far from returning to losses
When The Register MS Says "Linux Backdoor" It Actually Talks About Malware
The leading story in The Register US/MS this morning is Microsoft
Microsoft Windows Fell to 19% "Market Share" in Montenegro
Microsoft must be well aware of this trend
Why We Also Include Gopher Links in Our Gemini (Protocol) Links
There are still many people who use Gopher to relay their messages (like blog posts). They're mostly technical people.
Shouting is an Indication of a Lack of Convincing Argument
Beware what they are attempting to distract from
Mongolia: Microsoft Windows at All-Time Low
in 2009 when Windows was at 99.45% in Mongolia the company was "worth" less than 200 billion dollars
About a Quarter of Today's "linux" News in Google News Came From One Domain and It's a Slopfarm
Not kidding!
Gemini Links 05/08/2025: Zombie Threat and Switching to NixOS
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, August 04, 2025
IRC logs for Monday, August 04, 2025
ChatGPT in Trouble
Watch out for the newer buzzwords
The Register MS Links to the Wrong statCounter Page
They link to older data
Dr. Andy Farnell Explains How Google Turned From "Librarian" Into "Oracle", Telling Us What to Think Instead of Where to Look
Google was always a lousy librarian
Microsoft Layoffs Continue in August 2025
If Microsoft is doing so well, how come about 10 rounds of layoffs in about 7 months in 2025?
Microsoft and Windows Have Many Back Doors, But LLM Slop Keep Claiming That Linux Has "Backdoor"
It's another example of LLM slop as FUD amplifier, via slopfarms as well
In Many Countries Vista 11 Adoption Stalled or Became Negative
Not just because people move to GNU/Linux
Microsofters' Lawyers Are Name-calling and Insulting Microsoft Critics, Even Their Spouses
How not to win arguments
Flagging or Tagging Slop That We Find Online
Right now we use ImageMagick
Links 04/08/2025: Very Bad Weather and Travel Restrictions in China
Links for the day
Gemini Links 04/08/2025: Misiamisia and Mobile Linux
Links for the day
Microsoft's Stock is Like a Religion, Microsoft Goes Into 'Hiding' (From Shareholders)
like a religious person or devout believer, the media just parrot anything Microsoft says
Links 04/08/2025: 80 Years Since Last Nuclear War, IPv6 in China
Links for the day
Groklaw Static Site Relaunches With New Theme, But Many Pages and All the Comments Are Missing
We suppose that's still a lot better than the site being offline, as it was for several months
"For Five decades; For freedoms; For all users" (Original EMACS Turns 50 Next Year)
Linus Benedict Torvalds was only 6 when EMACS started
In Spain, Microsoft's Search Engine Market Share Fell to 2%
16 years have passed since Bing was introduced
Protecting GNU/Linux-Centric Journalism From Serial Sloppers
Unoriginal slop is taking away traffic from the people who did all the real work
It Looks Like Managers at Oracle Now Use LLM Slop to Write Blog Posts
Did he cheat by prompting LLMs for mindless text "filler"?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, August 03, 2025
IRC logs for Sunday, August 03, 2025
Gemini Links 04/08/2025: Qubes OS and Curious crypto case of certificates (CCCC)
Links for the day