Bonum Certa Men Certa

To Keep the Patent System Alive and Going Practitioners Will Have to Accept Compromises on Scope Being Narrowed

They want to keep the pie and eat it as well

Big pie



Summary: 35 U.S.C. ۤ 101 still squashes a lot of software patents, reducing confidence in US patents; the only way to correct this is to reduce patent filings and file fewer lawsuits, judging their merit in advance based on precedents from higher courts

THE USPTO has undergone quite a few changes in recent years, triggered initially by AIA and then SCOTUS downwards ('trickling' down to lower courts over time).



"The patent microcosm prefers to cherry-pick cases based on their outcome."Among the main casualties? Software patents. The patent microcosm prefers to cherry-pick cases based on their outcome. The latest such example is Zeroclick v Apple, a Federal Circuit (CAFC) case from the very start of this month [PDF]. We wrote about it a couple of days later and Watchtroll did too (a relatively long time afterwards); it's said to be about "(G)UI code" even though there's no such thing (in programming there's a callback function associated with pertinent GUI elements, but the GUI itself is just a layout, which could possibly be seen as copyrighted). Anyway, this isn't a case about software patents or even ۤ 101/Alice. Some say it is about ۤ 112. Those same people (or a colleague, Charles Bieneman) speak of DDR Holdings, which is utterly desperate to salvage some abstract patents from ۤ 101; the 'famous' case of DDR Holdings was mentioned a lot in 2016 (even here, e.g. [1, 2, 3, 4]), but it was rarely cited since. The word "Saves" (not "Survives" as patent maximalists typically put it) was used to describe the following move:

The Federal Circuit’s famous (or infamous) decision that one DDR Holdings’ patent was not invalid under 35 U.S.C. €§ 101 was used to support a district court’s denial of a motion for judgment of €§ 101 for three other DDR Holdings’ patents. In DDR Holdings, LLC v. Priceline.com, LLC, No. 17-498 (D. Del. June 5, 2018), the court denied a motion for judgment on the pleadings, because the three present patents-in-suit share the same inventive concept” as U.S. 7,818,399, which the Federal Circuit held patent-eligible in its 2014 decision in DDR Holdings, LLC v. Priceline.com, LLC.

The previously-litigated ’399 patent is entitled “Methods of expanding commercial opportunities for internet websites through coordinated offsite marketing,” and claims, in a nutshell, one online merchant to presenting retail opportunities framed with branding of another online merchant.


If business methods or software patents are being authorised by the district court, it oughtn't necessarily mean that CAFC will agree. In fact, it seems quite likely that an appeal would void these patents, judging by the deviation in views and interpretations (CAFC is a lot harsher or stricter than any of the district courts). Ideally, in order to improve certainty around patent eligibility, the district courts will need to become more like CAFC, which itself became more like SCOTUS. That's just how application of law works. The precedents cascade downwards, not upwards.

"If business methods or software patents are being authorised by the district court, it oughtn't necessarily mean that CAFC will agree."Staying with that same law firm/site, which is actually not bad at all (pretty moderate), here they give a new example of 35 U.S.C. ۤ 101 in action. It still puts an end to a lot of patents wrongly granted by the Office, especially software patents. Well, the 'famous' case of DDR Holdings was brought up to no avail:

Patent claims directed to monitoring Internet activity “to increase the objectivity of the search results returned responsive to a search for talented original content creators” were held invalid under the Alice/Mayo abstract idea test and 35 U.S.C. €§ 101. Accordingly, in Talent Broker Tech. LLC v. Musical.ly, Inc., CV 17-08532 SJO (MRWx) (C.D. Cal. May 22, 2018), the Court granted the defendant’s Rule 12 Motion to Dismiss, finding claims of US 8,510,154 and US 8,630,894 patent-ineligible.

This was the defendant’s second motion to dismiss, the first having been granted with the plaintiff given the significantly more than an old and fundamental idea. As before, on the present motion the court found “that the claims of the Patents-in-Suit are directed to the abstract idea of organizing, differentiating and retrieving information.” For example, claim 1 of the ’894 patent, said the court,


It was a software patent and now it's gone. Bieneman's colleague Daniel Hegner meanwhile covered a district court case regarding a major patent troll, Uniloc. This troll is losing yet another software/abstract patent, owing to 35 U.S.C. ۤ 101. To quote Hegner:

N. District Court of California grants Apple’s 12(c) motion for judgment on the pleadings (following full briefing and oral argument) finding claims of U.S. Pat. No. 6,661,203 ineligible under 35 U.S.C. €§ 101 based on broad functional claim language that does not recite how to achieve the claimed process beyond what is known in the admitted prior art. Uniloc USA, Inc. v. Apple, Inc., Civil No. C 18-00358 WHA (N.D. Cal. May 18, 2018).

Uniloc (Uniloc USA and Uniloc Luxembourg) sued Apple for infringement of its battery charging and discharging system.


There have been other examples lately, especially at the Patent Trial and Appeal Board (PTAB). Sooner or later Uniloc might go out of 'business'. It operates via rather dodgy proxies (like the one in Luxembourg, Europe) and its patents are being axed one by one, sometimes owing to the bounties-offering Unified Patents.

"For law firms, as well as for courts, predictability is very important. They otherwise look like fools or cheats to their clients."Seeing that such patents mostly perish in the face of ۤ 101 we have to wonder how long it will be before: 1) the USTPO will quit issuing such patents. 2) patent law firms will stop advising clients to pursue such patents (or clients themselves lose interest). 3) no more lawsuits of this kind will be filed, knowing the the outcome will be favourable to the defendant or neither side (both sides just having to pay legal bills, potentially with the plaintiff footing both sides' bills).

The sooner (1)-(3) may happen, the more rational, sane and predictable the US patent system will become. For law firms, as well as for courts, predictability is very important. They otherwise look like fools or cheats to their clients.

Recent Techrights' Posts

NVIDIA Corp Lost 36% of Its "Value" Since Cheeto Inauguration, But "Gen Hey Hi" (GenAI) is Totally Not a Bubble
Selling loads of unneeded hardware based on hysterical hype; like selling shovels during a Gold Rush
GNU/Linux Growing in East Asia, Windows by Default No More?
GNU/Linux is now on the shelf
Slopwatch: Anti-Linux 'Articles' From Linux-Hostile LLMs
It is almost always negative things and nobody can be held responsible for it except the charlatans prompting the LLMs
Links 05/04/2025: Fentanylware (TikTok) "Sale Looks Highly Imminent" (US), Stock Market Drowning in Panic
Links for the day
Gemini Links 05/04/2025: Moving Plants, No to Smartwatches, RAID Hygiene
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 04, 2025
IRC logs for Friday, April 04, 2025
Techrights Has Dealt With More Potent SLAPPs Than Violent Microsofters Begging to Hide What They Did to Women
I became accustomed to SLAPPs
Links 04/04/2025: Fury in South Korea, Flight MH370 Remains Mystery
Links for the day
Gemini Links 04/04/2025: Anger and Raspberry Pi CM4
Links for the day
Links 04/04/2025: LLM Slop Bubble Bursting and Korea Music Copyright Association Bans Slop 'Music'
Links for the day
Traf-O-Data, the Company That Jeffrey Epstein's BFF (Bill Gates) (Co)Founded 53 Years and Went Out of Business Due to Heavy Losses
Who will die first, Bill or Microsoft?
Why Microsoft's Shares Sank Almost 20% in Recent Months (the Bubble is Imploding)
verified press reports from the past 24 hours
A Note on SimilarWeb
Or why SimilarWeb is meaningless for more than 99% of the sites on the Web
GNU/Linux Rises to Almost 5% in Algeria While Windows Sinks to All-Time Low
GNU/Linux grew tenfold
Where to Get More Gags
A valued reader recommended that to us
Links 04/04/2025: Tech Stock (Inc. GAFAM) Fall, Google Pretends to Do End-to-End Encrypted Emails (With Google in Control)
Links for the day
IBM Said to be Shutting Down Offices or Sites in the United States
the press can no longer avoid admitting that IBM moves many jobs to India
To Participate in Fedora Diversity You Must Use Proprietary Software
Not for the first time either
LLM Slop as Attack Vector on the Reputation of Linux
The attacks on Linux have escalated to information warfare
Yandex About to Be Three Times Bigger Than Microsoft (Bing) in Asia
That's about 60% of the world's population
Gemini Links 04/04/2025: Decoupling Updates, Elaho as Gemini Client
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 03, 2025
IRC logs for Thursday, April 03, 2025
Microsoft's Trouble in Africa and Asia
A new all-time high for GNU/Linux
Brett Wilson LLP Reported to the Solicitors Regulation Authority (SRA)
The saddest thing in all this is that law firms can maintain high standards shall they wish to
Links 03/04/2025: Tariff Pains and C.D.C. Cuts
Links for the day
StatCounter: Microsoft is Masking a Disaster, It's Way Behind DeepSeek Already and Interest in LLMs Has Waned
it turns out the money "raised" for "Open" "AI" may not even exist at all
Links 03/04/2025: SoftBank Money for Microsoft "Open" "AI" Probably Doesn't Even Exist, Wikimedia Foundation Blasts LLM Nuisance While Microsoft Admits Demand Has Shrunk
Links for the day
Gemini Links 03/04/2025: Patch Panel and Pictures
Links for the day
Islamic Republic of Iran: GNU/Linux at All-time High This Month, Windows Falls to 12%
Vista 10 is up this month despite being "end of life" (EoL) soon
Indonesia: All-Time Highs for GNU/Linux
What's noteworthy right now is the growth of GNU/Linux
statCounter Says GNU/Linux Usage is Up Again (Internationally)
some preliminary April data
Only on April 1st Can the Free Software Foundation Associate With Microsoft's Open Source Initiative (OSI)
We saw some pranks that day linking the FSF to Microsoft (e.g. "endorsing" Windows)
Confirmed in the Mainstream Media: A Lot of Microsoft "Workloads" Were Just LLM Slop (Helping to Fake Growth for Years, as Microsoft Had Paid "Open" "AI" to Become a "Client") and Demand is Rapidly Waning, Datacentres Canceled and/or Shut Down
Anything to facilitate further accounting fraud
Taiwan's Media Covers Closure of Microsoft's "AI" Lab, It's Time to Talk About the Gradual Death of Windows and Implosion of the "AI" Bubble
Earlier this week we showed that mostly Asian media had the 'nerve' to mention Microsoft silently shutting down its 'AI' lab
IBM Gets Rid of Kelly Chambliss as Mass Layoffs Reported in IBM Consulting, IBM Loses Key Contracts/Graft
IBM Consulting has been in disarray lately
More Gains for GNU/Linux, Based on Web Surveys
the Steam site shows rapid growth for "Linux" this month
Slopwatch: Anti-Linux Articles, Not Even Written by Humans
Why aren't Web sites more vocal about this problem?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 02, 2025
IRC logs for Wednesday, April 02, 2025
Links 03/04/2025: Apple Fined Over Secret Surveillance, "Elegant Writer For A More Civilized Age"
Links for the day