Bonum Certa Men Certa

The Anti-Section 101 (Pro-Software Patents) Lobby Looks at New Angles for Watering Down Guidelines and Caselaw

Section 101 (35 U.S.C. €§ 101) withstands endless lobbying against it

Section



Summary: By focusing on jury trials and patent trolls the proponents of bunk, likely-invalid abstract patents hope to overrule or override technical courts such as the Patent Trial and Appeal Board (PTAB)

IT SHOULD NOT surprise anyone that USPTO officials who came from the litigation 'industry' are upset at the Federal Circuit under Chief Judge Sharon Prost. As we shall show in later posts, she too has come under criticism if not attacks from the usual suspects. For those who forgot or haven't been following these affairs, Sharon Prost replaces a corrupt Chief Judge who was caught red-handed and is nowadays lobbying along with patent maximalists. They really hate Section 101, which basically invalidates just about any software patent.



A patent maximalist called Janal Kalis has just noted that "PTAB Affirmed an Examiner's [Section] 101 Rejection of Claims in a Thompson Reuters Patent Application for Docketing: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017005527-11-07-2018-1 …"

This is the usual; whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high. Berkheimer has changed practically nothing.

"...whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high."So what will those patent maximalists do about Section 101 and about PTAB? "Despite Misleading Question, Berkheimer Case Has Legs at the Supreme Court," Dennis Crouch says. Crouch himself is a very vocal patent maximalist and opponent of Section 101. And no, he's just trying to sway the court's stance, having long promoted software patents and patent trolls. The EFF has also just urged the Justices at SCOTUS to examine the case because they want closure (the court repeatedly declines to revisit the subject). Crouch mentioned "go[ing] to a jury." To quote: "In my view, the question presented by HP’s attorneys intentionally creates confusion as the Federal Circuit did not rule (1) that eligibility is a question of fact; or (2) that any aspect of the eligibility question goes to a jury. Rather, the Federal Circuit has repeatedly ruled, including in Berkheimer, that the question of “eligible subject matter is a question of law.” I’ll also note that no court following Berkheimer has seen eligibility itself as a question of fact or attempted to get a jury verdict on the issue. I contacted David Salmons (counsel of record for HP) to see what I’m missing about the misleading question, but he did not respond."

He was later admitting a mistake, citing patent troll Finjan. These Berkheimer pushers (who are software patents boosters) cite Microsoft's patent troll Finjan in relation to letting a nontechnical jury decide on patents (a big mistake). His mea culpa:

In my recent Berkheimer post, I wrote that “that no court following Berkheimer has … attempted to get a jury verdict on the issue.” Turns out that I’m potentially wrong.

In the pending case of Finjan, Inc. v. Juniper Network, Inc. (N.D. Cal. 2018), Judge Alsup has ordered a jury trial on the “inventive concept” question. In its order, denying summary judgment, the court found that the Claim 10 of Finjan’s U.S. Patent No. 8,677,494 was directed to the abstract idea of “collecting data, analyzing data, and storing results.” (Alice Step 1). However, the court decided to wait for trial to determine the inventive concept question...


Looking at this troll's affairs, it's pretending to be an actual company, it attracts some investment, and it speaks of 'sales' when all it really does is litigation. This is the kind of firm that needs to go bankrupt because it's a classic troll.

"Logical arguments about the scientific contribution of such patents (or detriment thereof) don't seem to bother them. A facts-based, evidence-based discussion just doesn't appeal to these people."Jury trials, as we have been pointing out several times over the past year, are more likely to get things wrong; jury trials are not suitable for technical matters involving patents, which they don't understand (particular scientific disciplines). This is misapplying one principle of law to granting of a monopoly. Juvan Bonni, who works with Crouch, has incidentally just promoted these two recent papers. One of these is sort of 'court bashing' by Cambridge Technology Law (a push against PTAB); they just loathe patent quality, so they try to discredit the court and AIA. How typical. More lobbying as “papers” (the Koch Brothers sponsor some other attacks on PTAB, using 'scholars' in institutions they sponsor). The second of those two speaks of juries in patent litigation. Watchtroll has meanwhile taken this further with N. Scott Pierce (Saul Ewing Arnstein & Lehr, LLP), who repeats the same arguments (more or less). What we find noteworthy here is that almost a year later (10 months) they are still pushing Berkheimer, engaging in revisionism about Oil States (no matter what SCOTUS ruled this past summer) and obsess over faulty jury trials (based on misinformation) so as to discredit the court. Logical arguments about the scientific contribution of such patents (or detriment thereof) don't seem to bother them. A facts-based, evidence-based discussion just doesn't appeal to these people. They never wrote a single line of code.

Recent Techrights' Posts

XBox Being Discontinued, Some Models of XBox Canceled, Not on Sale Anymore
First some of the largest retailers quit stocking/selling XBox, now a 2TB model is axed
Firehose of Spam (Fake News) From The Register MS Today
This is how awful the state of news sites really is
Natural Disasters and Personal Disasters
Thank you, Om Malik, for the positive memories
Microsoft Already Closing Down Studios, According to Some Publishers
It is being compared to what happened in Intel
IBM PIP Stories Told in Public, Fake IBM News (Fabricated Claims) Drown Media Sites
IBM is seeding fake news to help justify the bailout
 
Links 26/06/2026: SoftBank Forbids Mentioning That Slop is a Scam, "'We Need Courageous People' to Combat Greed and Corruption"
Links for the day
Gemini Links 26/06/2026: "Negativity of Reddit" and "Moving Blog to Gemini"
Links for the day
Same MIT Site That Fabricated the Fake News for IBM is Still Being Paid to Produce Fake "Reports" That Prop Up a Ponzi Scheme
If this is the media we deserve as a society and believe keeps us informed, then we are all doomed
'Social' Slop: The Social Control Media and Slop Crises Are Converging
Social Control Media and slop may have a shared fate. People will shun them both.
Union Syndicale Fédérale (USF) Speaks Out Against Campinos and Informs the Chairman of the EPO Administrative Council
Does Mr. Kratochvíl pay any attention at all?
'António the Pretender' Campinos is Digging His Own Grave With Grotesque Lobbying Intended to Undermine Democracy in Europe's Second-Largest Institution
One way or another, the EPO will never be the same again
The Principle of "Do No Harm"
"Do No Harm" is a common saying
After Years of Bluewashing People Who Are Still Labelled "Red Hat" Suddenly 'Leave' (Might be PIPs), IBM in "Forever Layoffs" Loop
Remember that Red Hat had mass layoffs this year
Microsoft Staff Bracing for Impact Ahead of "Layoffs Lottery"
some people start to assess who will get culled next
Donald Trump and IBM's CEO: Twins Separated at Birth, Saturating the Media With False Reports About Things That Don't Exist
Every "journalist" that went ahead with this fake news should be sacked on the spot for a rejection of fact-checking
The Register MS Will Become Indistinguishable From Spamfarms at This Current Pace
Follow the money...
Microsoft Layoffs Have Already Begun in Its PR Department
It is called Waggener Edstrom
Techrights Community as Litigants in Person (LIPs)
Unwittingly and due to circumstances we're had to step in to protect women abused by monstrous men who lack empathy
European Patent Office (EPO) Series: Rest and Recuperation on the Adriatic Coast
The EPO President's connections with the Croatian SIPO date back to his days as head of the EU trademark agency EUIPO
Slopfarms Becoming Scarce and Few (or Inactive)
we'll try to refrain from even giving the remaining slopfarms any visibility
The Register MS Promotes Things That Do Not Exist... for Money
How much more ZTE spam will come out before 5PM?
Links 26/06/2026: RIP, Om Malik, 1966-2026
Links for the day
Memory Leaks Suck
Slop ('vibe') coding means lots of bad programs
Gemini Links 25/06/2026: Life Philosophy and Misery
Links for the day
GAFAM Became a Mainstream Term, and Why Words Matter
Conveying problems in useful terms [...] Impairing propaganda attempts (e.g. calling parrots "intelligence", back doors "confidential", and outsourcing "cloud") should be the first step
European Patent Office (EPO) on Strike Today, Next Week Another Historic Week
If you live in Europe, contact your delegates today
FSF FreeJS Project (Part of the GNU Project's Goals) Advanced Further in 2026
They're moving to reduce dependence on anything to do with Microsoft
SLAPP Censorship - Part 119 Out of 200: Our Suggestions to Our Politicians and Heads of State
coverage about SLAPPs and related matters
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 25, 2026
IRC logs for Thursday, June 25, 2026
Microsoft Falls to Lowest Value Since 2023
Microsoft can come back down to somewhere below $100
This Could be the Start of Microsoft's Biggest Wave of Layoffs in 50+ Years
This is what it looked like for Intel a few years ago
The Register MS is Promoting a Pyramid Scheme for Money, But It Is Over 6 Million Pounds in Debt
How much lower can the reputation of this publisher sink?
Gemini Links 25/06/2026: Unix-like People and NeoGeo
Links for the day
Members of the Delegations in the EPO's Administrative Council Told That Amid Unrest Campinos Must Go; a Year of EPO Strikes Means It's Time to Change Leadership
Which strategy is needed for the European Patent Organisation?
The Cyber Show on How Data is Misused and Broadcast is Abused to Crush Resistance to Harmful Technology
We recently published a number of articles about how Computer Science is coming under attack
Increasing Participation Rates in Staff Representatives' Elections at the European Patent Office (EPO)
The industrial actions seem to have brought colleagues closer together
Microsoft's Mass Layoffs Have Already Begun (Could Not Wait 'Til July)
Microsoft's biggest layoffs round in 50+ years?
Assessing the "Worth" of a Life
Don't let blunt plutocrats decide whether Venezuelans deserve sympathy or not
Planning 20-Year Techrights Event
Interested people can contact us in IRC
Links 25/06/2026: Earthquakes Strike Venezuela, Conflict of Interest in Kangaroo Court UPC
Links for the day
More Weight of IBM's Stock is Ascribed to Lies and Things That Do Not Exist
Turning stones into gold?
SLAPP Censorship - Part 118 Out of 200: Exposing Crimes is Not a Crime, It is a Public Service
We will soon enter the sixth year of lawfare
Links 25/06/2026: "Why We Need Seed Legislation" and XBox Chaos Predicted by Insiders
Links for the day
Gemini Links 25/06/2026: Hobbies Change, Young love, Strange Encounter, and Raspberry Pi Zero W
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, June 24, 2026
IRC logs for Wednesday, June 24, 2026
Don the Con Meets the Conman From IBM, Shares of IBM Continue Sliding Some More
The "Quantum" hype did not last long [...] PIPs are the new layoffs
Retaliatory Whistleblowing Expected at Microsoft During or After the Mass Layoffs
Retaliatory behaviour by Microsoft will backfire
Gemini Links 24/06/2026: Heatwave, Steam Next Fest, and Year of Buying Guitar Pedals
Links for the day
Links 24/06/2026: China Tops "TOP500", Impact of Microsoft’s Massive Layoffs Extends Further, Internet Society's Community Snapshot
Links for the day
While Thousands at IBM Lose Their Jobs ("Silent Layoffs") IBM's CEO Goes Begging the Dictator for Bailouts, Based on Deliberate Lies About "Quantum"
Many who claim to be retiring are only in their 40s and 50s. They're too proud to publicly admit what IBM did to them.
European Patent Office (EPO) Series: London Calling...
EPO Vice-President in charge of the "Patent Granting Process" is likely to have been a pay-off for the support which the UK gave to Campinos in 2017
Faking Productivity With Slop and Wasting Money on Faking 'Productivity': A Microsoft Story
If the quality of everything at Microsoft goes down
IBM Sends Workers 'Packing', Sometimes With the "Low Performer" Label That Imperils Their Future
To many people out there, IBM correlates with deceit
Links 24/06/2026: Four-Day Workweeks, GM Cut 1,000 Workers at Its EV Plant, 21,000+ Oracle Layoffs
Links for the day
A Step in the Right Direction (EU) in the Fight Against LLM Slop From GAFAM (US)
We've already mentioned this in Daily Links, but let's discuss this a little further
SLAPP Censorship - Part 117 Out of 200: Libel Tourism or Defamation Forum-Shopping in the United Kingdom Condemned by the European Union (EU)
Last week we reminded readers that the EU had criticised UK defamation law
Demonstration Next Week at the European Patent Office (EPO), Administrative Council Seen as Complicit
Corruption in Europe hurts all of us
IBM is Now Hinged on False Accounting and False Promises
This is the legacy of the current CEO
"PARTNER CONTENT" or 'Content Farms' That Promote Slop and Misinformation (The Register MS)
The Register MS represents a big part of the problem we all face
Wikipedia - Like Some Free Software Projects Infiltrated and Bribed - Bans Its Own Founder
Over the years we've named (not shamed) some projects and organisations that got corrupted by money and ended up banning their own founders
Turn Off the Slop, It's Wasting Energy and Destroying the Planet (the Only Planet We Have)
Right now we see lots of headlines about energy shortages and drained-up reserves
Lessons From Almost 30 Years of Site-Building Activities
We still strive to become faster and lighter
Do Not Outsource (the Seductive Mirage)
Abandoning so-called 'conventional wisdom'
Media Complicit in IBM Fraud Meant to Prop Up the Share Price Based on Lies, Fabrications
Even IBM insiders are fuming at this
The “Aktion T4” at the European Patent Office (EPO) Saves Money for the President's Own Purse
Call for parents of children with special needs
In Some Countries, Windows Has Lost Its Monopoly
Windows fell to an all-time low globally this month
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, June 23, 2026
IRC logs for Tuesday, June 23, 2026
Gemini Links 24/06/2026: Motivation, PostScript Printer, and Why Hyperscalers and the Smolnet are Compatible
Links for the day