Bonum Certa Men Certa

Buzzwords and Hyped-Up Patent Cases (Like Berkheimer) Are Still Being Exploited to Promote Software Patents

Patent maximalists have turned it into a 'branding' match

Big branding



Summary: The attempts to overcome Alice and bypass Section 101 are becoming ever more desperate and dishonest; some law firms still bring up Berkheimer v HP and Aatrix Software v Green Shades (old decisions, virtually abandoned by now) and others carry on with "blockchains", "AI" and so on (new varnish on same old software patents)

THE courts in the US no longer receive as much patent 'action' as before. This is fine, but the goal should be to depress if not altogether eliminate patent trolls, not legitimate patent lawsuits. The legitimate patent lawsuits are those in which patents asserted are justified, defensible, and used proportionally against few parties, not in a 'fishing expedition' style (trolls sometimes target literally thousands of cash-strapped startups for 'protection' money).

A few days ago Docket Navigator published this update on Finjan, Inc. v ESET, LLC. Finjan is Microsoft's 'proxy' patent troll (see the Finjan timeline) and it's still attacking most of Microsoft's competitors with dubious software patents. This is the latest:

The court granted in part defendant's motion to compel the production of billing records from plaintiff's prosecution counsel because some discovery was relevant to defendant's prosecution laches and inequitable conduct defenses.


An article by Cara Bayles soon revealed that a Microsoft-connected patent troll (Microsoft paid it a lot of money to settle) is going after Apple and failing. To quote:

A California federal judge on Thursday said he would strike a number of “bogus and conclusory” claims from a Uniloc USA Inc. patent infringement suit against Apple Inc., but also allow Uniloc to amend those allegations, saying he disagreed with Apple’s contention that it could not mount a defense against the allegations it says are too vague.


Why were these software patents granted in the first place? That's the root of the problem.

"the goal should be to depress if not altogether eliminate patent trolls, not legitimate patent lawsuits."We've spent the past week looking closely at some news (and news about software patents in particular).

The USPTO has just granted software patents again [1, 2] and what's the excuse this time? When one uses buzzwords like "IIoT" to get software patents or even "Cryptocurrency", can examiners still say no? Can they see past the hype? These are all bogus software patents, but China is perhaps the only large nation in the world which permits these abominations (in courts, too). Mind this new article, "Blockchain Promises to Revolutionize Creative and Intellectual Property Rights," and remember that it's just lots of hype and propaganda terms like "Intellectual Property Rights" (IPR, but not inter partes review). Remember that it's also a loophole/trick for software patents.

"Why were these software patents granted in the first place? That's the root of the problem."Here comes Watchtroll with Berkheimer+Blockchain spin. Blockchain patents are just software and are thus bunk, they won't be usable in courts. But Watchtroll simply uses sound bites; it 'pulls a Berkheimer'. So did the anonymous (and without disclosure) "Inventors Digest" a few days ago. Here is what it argued: "Sadly, until recently, nearly 80 percent of all patents challenged under the “abstract idea” argument have fallen prey to the courts’ decisions, generally by way of summary motion at the beginning of a case. This means that most plaintiffs filing suit against infringers were simply told to pack their bags very early in the process, denying their right to a day in court. As a result, with the prevalence of this new doctrine, there is little incentive for an operating company approached by a patent owner to negotiate a license in good faith; the odds of killing the patent(s) at stake are so high and the costs to do so are still very low compared to a full trial on the merits."

Those who are still boosting Berkheimer and Aatrix in a coordinated effort to give an illusion of a software patents resurgence are lawyers and liars. There's no such resurgence. These are just 'sales' tactics.

"Blockchain patents are just software and are thus bunk, they won't be usable in courts."Here comes the so-called "Berkheimer Effect" (like magic stardust): "Two decisions from the court in Berkheimer v. HP and in Aatrix Software v. Green Shades Software stated that deciding whether a patent may simply embody an “abstract idea” may also be a question of facts, not just one of law."

No, these barely changed a thing. At all! They don't even get brought up anymore (or very rarely). Going back to blockchains, here's a new article hyping up "Blockchain-Related Patents" by name-dropping large and famous brand names like Walmart, MasterCard, IBM, and JPMorgan. To quote:

The United States Patent and Trademark Office (USPTO), the US agency that issues patents to companies and investors, awarded several blockchain-related patents on Thursday. Some of the companies that saw their applications approved are IBM, JPMorgan, Walmart, Intel, and MasterCard among others.


What a waste of money; but these companies are likely to cross-license rather than sue, so these patents are unlikely to ever be questioned... bar an inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB).

"It often seems like any algorithm just needs to be labeled "AI" in order for it to be celebrated as innovative and supposedly patent-eligible. That's just what's 'fashionable' nowadays."If blockchains weren't bad enough a loophole (they actually refer to something real; they're not a mere buzzword, just hyped), here comes an article by Jeffrey H. Albright (Lewis Roca Rothgerber Christie LLP) about the buzzword "AI" and then Dr. Derek Lowe with "AI Will Not Threaten Pharma Patents – Not This Way" (this is about 'AI' in relation to examination, application and management). Everywhere one turns in the media these days it's "AI this" and "AI that" (they just call everything "AI", just as they did "cloud" and "smart"). And not in relation to patents but in patent maximalism sites we have "House Subcommittees Hold Hearing on Artificial Intelligence Challenges and Opportunities" and "How ARM Is Using Artificial Intelligence To Supercharge Its Patents" (the typical patent propaganda from Forbes).

It often seems like any algorithm just needs to be labeled "AI" in order for it to be celebrated as innovative and supposedly patent-eligible. That's just what's 'fashionable' nowadays.

Recent Techrights' Posts

XBox Consoles Nearly Dead by Now, the 'XBox' (ex-Box) Brand Now Stands for Something Full of Slop, Spam, Filler, and Chaff
We're seeing the last day (maybe year) of "XBox"
Fake IBM Retirements (IBM Gives Older Workers Ultimatums, Deadlines, and Carrots on Sticks)
As they point out, IBM is desperate to lower costs
 
Fewer Involuntary Interruptions This Year
This year we're doing much better
Prisons Are for Dangerous People Who Pose a Threat to the Public, Not People Who Inform the Public
At the end of the week EPO workers go on strike
Microsoft Loses Grip on Indian Ocean
Many countries, including in older allies of the US (such as Canada and the US), look for ways to get out of Microsoft dependence urgently
The Great "AI" CON Explained by Dr. Andy Farnell
LLMs are basically advertisers of sorts
Links 26/01/2026: "Journalists Detained", in Germany "Unjustly Jailed Man Gets €1.3 Million Compensation"
Links for the day
Red Hat Quietly Going Extinct After Bluewashing in 2026
At this point it would be rather foolish to assume that IBM will let Red Hat just "do its own thing" or maintain its corporate culture, identity, projects etc.
The "Alicante Mafia" - Part XII - Kris De Neef and Roberta Romano-Götsch, Who Stepped in for the Cokehead, Have No Comment on His Cocaine Usage (and the EPO's Cover-up)
Sh-t floats to the top.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, January 25, 2026
IRC logs for Sunday, January 25, 2026
Gemini Links 26/01/2026: Cold Perception, Software Patches in NixOS, and Sunk Cost Fallacy
Links for the day
Linuxiac is Basically a Fake News Site, But It's Being Fed by Google News
Because Google News is run by Google, a slop pusher
Links 25/01/2026: Slop "Tribalism", Nike Apparently Cracked
Links for the day
Claims That PIPs Are Abused for Silent Mass Layoffs at IBM (Without Severance) or Forced Retirements
Performance Improvement Plans (PIPs) "clearly bogus as everyone on my team who has been on one has been fired"
WebM Version of Richard Stallman's Latest Talk (Georgia Tech Talk)
The file size is smaller
After Half a Decade Vista 11 is Still a Giant Failure
Don't expect Microsoft to gain a foothold
Details on IBM Layoffs in the EU Last Week, Same Allegedly Coming to the US Shortly
"Around 50 people affected in Belgium."
Technology Trends Driven by DRM Giants, Planned Obsolescence, Not the Needs of the Buyers
The "pushers" think of customers as "users"; and they encourage passivity, Stockholm Syndrome
Links 25/01/2026: Microsoft BitLocker Backdoored for Decades Already, Microsoft-Backed ICE Still Murders Civilians
Links for the day
Gemini Links 25/01/2026: "Expert in a Dying Field" and Global Commands
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, January 24, 2026
IRC logs for Saturday, January 24, 2026
After the Slop Bubble
At the end, looking back, we'll all generally understand that the net effort of slop was environmental destruction
IBM CEO Says IBM is Just Reliant on Buzzwords That Are Overhyped
IBM has nothing to show anymore and telling fairytales to shareholders is a temporary 'fix'
The "Alicante Mafia" - Part XI - No Comment From Steve Rowan, Niloofar Simon, and Christoph Ernst About Cocaine Inside EPO
What kind of patent office is this?
Projection of Fanatic From Microsoft
Microsoft Lunduke is pandering to the 4Chan 'crowd'
Digg.com (Digg) is a Censorship Platform, Just Another Social Control Media/Network, Controlled by the Few
We are not going to bother with any social control media
Spam, Slop, and Fake 'Articles' Regarding "Linux"
Serial Sloppers like these are harming real reporting about Linux and GNU
Rape investigation dropped: Will Fowles & ALP transgender deception
Reprinted with permission from Daniel Pocock
Diversity, Grooming & Debian transgender Zero
Reprinted with permission from Daniel Pocock
Pauline / Maria / Alice Climent(-Pommeret) & Debian transgender offensive cybersecurity deception
Reprinted with permission from Daniel Pocock
Did judge with transgender sister & Debian conflict of interest help cover-up a death?
Reprinted with permission from Daniel Pocock
Giving a Voice to the Community (Even When It's Inconvenient or 'Scary')
Once upon a time we were threatened with deplatforming for merely reposting articles by Daniel Pocock; we no longer have this problem
Links 24/01/2026: CBS News Demolished From the Inside and Many Publishers Admit Layoffs
Links for the day
Gemini Links 24/01/2026: Dreams and Raspberry Pi Zero 2W
Links for the day
Richard Stallman's First Talk in US College Since 2018: Videos and Photos
There are some backstories
Judge Richard Oulevey (Grandcour Choeur, Tribunal Vaud) & Debian shaming abuse victims and witnesses
Reprinted with permission from Daniel Pocock
Judgment: French army vanquishes German FSFE on Hitler's birthday, Microsoft contract dispute (1716711)
Reprinted with permission from Daniel Pocock
EDPB/CNIL privacy expert Amandine Jambert (cryptie, FSFE) implicitly admitted lying about harassment when she resigned admitting conflict of interest
Reprinted with permission from Daniel Pocock
Links 24/01/2026: TikTok Controlled by Alt Reich in US Now, White House Shares Fake, Manipulated, Misleading Images Already
Links for the day
Projection Tactics - Part IV: SLAPP by Americans Against Techrights (UK) to Hide Serious Abuses Against American Women
"PRs need to stop being complicit in suppression of information via SLAPPs"
Dirty Laundry at Debian and Elsewhere
We cannot just brush aside real issues involving real people and their families
Illegal, Unconstitutional Kangaroo Court for Patents Drops the Masks, Shows Its Real Purpose is to Serve Multinational Monopolists and Crush European SMEs
Europe (or the EU) is rapidly becoming a corporate project, not a unified governance initiative
The "Alicante Mafia" - Part X - EPO Strikes to Begin Next Week
Things gradually escalate this month
Gemini Links 24/01/2026: Snow, Boxing, and Lisp is Fun
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, January 23, 2026
IRC logs for Friday, January 23, 2026