Bonum Certa Men Certa

Berkheimer Changed Nothing and Invalidation Rates of Abstract Software Patents Remain Very High

Weight comparison



Summary: Contrary to repetitive misinformation from firms that 'sell' services around patents, there is no turnaround or comeback for software patents; the latest numbers suggest a marginal difference at best -- one that may be negligible considering the correlation between expected outcomes and actions (the nature of risk analysis)

THE QUALITY of patents at the USPTO (existing and newly-awarded ones) isn't great, but at least it seems like it's improving and the number of patent grants is declining (at long last).



"Sadly, some people who write on patent matters are willfully clueless..."The psyche or mentality surrounding patents ought to change. Not all patents represent innovation and some kinds of patents actively suppress innovation. It's not even a controversial premise as many scholars have shown just that, even empirically.

"Microsoft’s New Patent Will Let You Communicate With Others In 3D," said a headline from yesterday, but patents don't "let" anything. They restrict. Sadly, some people who write on patent matters are willfully clueless (this site is generally awful in its coverage on most topics because the writers don't specialise in the areas they cover; they do Microsoft 'ads' a lot of the time, under the banner of "FOSS")

"Apple Could Let You Store Your Passport on an iPhone," said another new headline, misusing that word "let" again. Patents are not about "letting" but about monopolising. Another new article about Apple patents talks about so-called 'Augmented Reality' (buzzword); it's a patent or at least an application that we wrote about over a weekend. It's abstract, sure, but with trendy terms like 'Augmented Reality' (or AR for short) will examiners see that? Andrew Rossow, in the meantime, found the "blockchain" hype; he uses it to advance his professional agenda, which he calls "Intellectual [sic] Property [sic] Rights [sic]" right there in the headline. It's outright ridiculous, but this is the kind of press coverage we find about patents. Some of it is composed by lawyers and the rest just repeats claims made by companies (without applying some critical thinking). A lot of it is just "buzzwords salad" -- a subject we tackled on Sunday and Monday in relation to software patents.

"For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents."What we really care about isn't what patent examiners say but what patent judges say; it's them (the latter) who have the final word, provided the accused can afford legal defense and a day (sometimes a year or more) in court.

For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents. They do so after Iancu's appointment as much as (or almost as much as) they did a year ago, i.e. before his name was even brought up. Christopher King (writing in Fenwick & West Blogs) has just published another one of these dishonest #ALICESTORM posts. Those are not objective at all. Do they even try to hide their bias?

Here's the key figure (among more):

The overall percentage of decisions invalidating patents under €§ 101 since we started tracking statistics in July 2014 has fallen slightly—from 67.5% to 66.0%—year over year.


The decline is very minor and there may be simple explanations for it. This may be noticeable (albeit barely) simply because fewer software patent 'owners' even bother anymore. They know they haven't much of a chance 'against' €§ 101, so only the 'stronger' patents wind up in court.

As for caselaw, virtually nothing has changed. Nowadays some law firms attempt to attribute the minor decline to Berkheimer. That now looks foolish, especially in light of detailed statistics. "Berkheimer Effect" (as some patent maximalists wanted to dub it) or 'pulling a Berkheimer' is useless. To quote: "Ironically, however, of the 25 decisions citing Berkheimer, 15 found invalidity, with only 10 finding validity, a higher invalidation rate than that of the recent cases not citing Berkheimer. Apparently courts primarily cite Berkheimer in order to acknowledge it before distinguishing it!"

"Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline."So bringing up Berkheimer -- one might semi-joke -- actually reduces the chance of a favourable (to the plaintiff) judgment. Isn't that hilarious? The numbers don't support the assertions made by lawyers over the past 6 months. The numbers themselves suggest so. And so they spin facts. Next time someone like Iancu brings up his Berkheimer 'memo' we'll surely point out that underlying facts aren't on his side (pun intended, given the nature of the Berkheimer decision). Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline. He cannot just abolish Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) either, not after SCOTUS defended IPRs in Oil States.

Recent Techrights' Posts

Advocacy of Software Freedom Changed, LUGs Became Less Relevant
The way we see it, support groups like LUGs sort of outlived their usefulness when it became easier to install GNU/Linux
For the Second Time in a Few Weeks Microsoft Lunduke Makes False Accusations Against Senior Red Hat Staff to Incite a Despicable 'Troll Army'
Nothing that Microsoft Lunduke claims or says can be trusted
Compromised by NVIDIA Proprietary Library
Meanwhile in Boston there are "[r]oundtable talk with FSF volunteers (both in-person and online)"
How Software Patents Were Viewed or Their General Status Changed Over Time
A rough summary
 
Watch the FSF Party Live (via Livestream)
It's in WebM format, which is widely supported by now
When Microsoft "Integrates" Something With "AI" It Means It's Losing Money and Is Generally Hopeless
how did Bing fare after 36 months of LLM slop being hyped up as "replacement" for search?
Most Certificates Don't Improve Security, They Mostly Increase Downtime (for No Good Reason)
The 'Gemini sites' (capsules) are a growing force
The statCounter Site Has Data Integrity Problems
Maybe we'll get back to statCounter when its data becomes more "stable" again
10 Ways to Combat Software Patents
software patents are loathed also by proprietary software developers
"Just a Little Bit of Meat..."
Free software "absolutism" is not a radical stance, more so if the only "radical" belief the user possesses is that he or she must be in control of his or her software, and by extension his or her computer
Red Hat is Ignoring the Free Software Community, It's a "Fortune 1000" Vendor
Red Hat's blog also participates a lot in promoting of Wall Street's latest pump-and-dump "AI" scheme
Free Software Foundation Party Has Begun
We shall be focusing a lot on software patents today
Former Head of the Federal Trade Commission (FTC) Lina Khan Knows Whatever Microsoft Touches Will Die
Just like Skype (as recently as months ago) [...] When Microsoft grabs things, or when it buys things, it almost never ends well
Slopwatch: Fake Articles About LibreOffice in Austria and Wine 10.16
very short
Links 04/10/2025: "attempted Coup" Noted in Facebook, Russia Kills Journalists via Drones
Links for the day
Gemini Links 04/10/2025: Anesthesia and Baudpunk
Links for the day
Links 04/10/2025: "Privacy Harm Is Harm", Criticism Outlawed in US
Links for the day
Garmin Uses Linux for Some of the Garmin Products, Now It's Sued by Strava Using Software Patents
Software patents should never have been granted in the first place
Richard Stallman Will Give a Talk in Sweden in 6 Days
Dr. Stallman, despite his battle with cancer is still alive and mentally sharp
FSF Turns 40
We'll be focusing on patent-related topics this weekend
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 03, 2025
IRC logs for Friday, October 03, 2025
Gemini Links 04/10/2025: Distro Hopping and "Part Time"
Links for the day
We Are Turning 19 in One Month, FSF Turns 40 in 3 Hours (CET)
For our anniversary next month we still have no concrete plans
Patent Docs (or PatentDocs) Learned the Wrong Lessons From the Death of TypePad
Had they gone ahead with an SSG, they'd become a lot more future-proof
USPTO Patent Bubble Already Imploding, After Decades of Artificial Inflation, Entire Offices Close for Good
we can deduce that financial pressures (lack of "demand" for monopolies) play a role
TikTok is Not Harmless (Being CheeTok in the US Will Advance Orange Agenda)
Social control media isn't "fun and games"; it's a digital weapon that lets hostile groups or nations infiltrate others, then turn them against themselves
Andy Farnell and Helen Plews Explain What "Modern" Tech Does to Old People
Imposing terrible tech "religion" on people is not helping them
Tomorrow the Free Software Foundation (FSF) Turns 40 and Its Web Site is Still Slow Due to DDoS by LLM Slop Bots
For an advocacy group, uptime is important (for its message to remain accessible)
Slopwatch: Google News as a Firehose of LLM Slop About "Linux"
Google News is really bad
Datamation, Where I Used to Publish Articles, Appears to Have Been Sold to TechnologyAdvice Only to Become a Slopfarm
I'd prefer to not associate with that site anymore
Links 03/10/2025: "NPR’s Economics Lessons Come With Neoliberal Spin" and Canada Post at Risk
Links for the day
Gemini Links 03/10/2025: Panic Attacks and Food Adulteration
Links for the day
Links 03/10/2025: Lawyers Caught Using LLM Slop Explain Why They Did It, LibreSSL 4.1.1 and 4.0.1 Released
Links for the day
FSF Board Grew 50% Since Last Year, Has New President, Turns 40 in Two Days
It's a good move for the FSF and - by extension - for software freedom
Links 03/10/2025: Conflicts, Death of TypePad, and TikTok/CheeTok Gives a Boost to Far Right Groups in Europe
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 02, 2025
IRC logs for Thursday, October 02, 2025
Slopwatch: Linux Journal, Google News, and LinuxSecurity
They carry on polluting the Web with fake articles
Gemini Links 02/10/2025: Kubernetes With FreeBSD and robots.txt
Links for the day
Links 02/10/2025: 'Open' 'AI' Resorting to Gimmicks and Fake Funding, Europe’s ‘Drone Wall’ Discussed
Links for the day
Links 02/10/2025: Brave Passes 100M Users Milestone, Kodak Selling Its Own Film Again
Links for the day
Michael “Monty” Widenius: It Started in 1983 With Richard Stallman (RMS)
The other co-founder of MySQL is a bit notorious for confronting RMS rather viciously
su lisa && rm -rf /home/ibm/power
Novell was ruined by another person from IBM, Ronald Hovsepian
A Record Demand at Microsoft: Demand to Cancel
What we're witnessing is a very ungraceful destruction of XBox
Microsoft is Losing Europe
Hence all the "support" and "discount" offers that are limited to Europe
The Free Software Foundation Starts Fund-raising for 40th Anniversary
New pop-up 2-3 days ahead of the 40th anniversary event
Systemd Breaks Networking in Debian and Microsoft Staff Rushes to Make Face-Saving Excuses in LWN
Microsoft's bluca is already there in the comments, his Microsoft money pays for LWN to let him leave comments early
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 01, 2025
IRC logs for Wednesday, October 01, 2025
What the End of XBox Will Look Like: a Fiery Crash
XBox is the next Skype. It won't last much longer. Expect many more layoffs.
Richard Stallman is Going to Finland to Give a Talk Next Thursday
A day later he speaks in Sweden
Gemini Links 02/10/2025: SMTP Pipelining and End of ROOPHLOCH 2025
Links for the day