Bonum Certa Men Certa

The US Supreme Court (SCOTUS) Will Waste No Time on Section 101. It Will, However, Waste Its Time on Obvious Patent Trolls.

The future looks bright for software development in the US because software patents have perished

The green shirt



Summary: A roundup of American patent affairs; in short, nothing is really changing on the patent (scope) front and that's a positive thing

THINGS are in general going well outside the chaotic EPO where António Campinos openly promotes software patents in Europe. Things improve in the sense that much of the world -- including the US, Australia and Canada -- are leaving software patents behind. They recognise that only lawyers and trolls want such patents; software developers strongly reject if not abhor such patents.



Deplorable patent lawyers from north America will never rest. They will never give up. Bereskin & Parr LLP's Cameron Gale, for instance, has just willfully given bad advice to businesses in spite of knowing software patents are worthless; these people even blast the law itself (or the policy of the Canadian Intellectual Property Office (CIPO)). Pure greed. But we have gotten accustomed to that. As it turns out, based on LWN's article "Patent exhaustion and open source" (it was freed from the paywall on Thursday morning, or about 10 hours ago), lawyers have even entered Free/Open Source software events. This one is about Lindberg and it mentions Alice:

A patent is a limited legal monopoly granted to protect an invention, giving the holder the right to exclude others from using, making, selling, and importing the invention (including things that embody the invention) for a fixed period of time. Much has been said and written over the years about the extension of patents to cover ideas that are expressed in software, but software patents are definitely with us at the moment.

There are, however, a number of limitations on the rights that a patent grants. One of these is patent exhaustion, which protects the ability of those lawfully in possession of goods embodying patents to use, sell, or import those goods without interference from the patent holder. Exhaustion prevents the patent holder from profiting more than once from the sale of any particular item; in Lindberg's words, as soon as the patent holder puts something "into the stream of commerce", the patent rights are exhausted. If Alice holds a patent for an invention embodied in a widget, and she sells a widget to Bob, then Bob is protected against accusations of patent infringement because he acquired the widget from the patent holder. If Bob sells his widget to Carol, she is similarly protected; not because she has licensed the patent from Alice, but because Alice's patent interest in that widget was exhausted by that first sale to Bob.

[...]

We in the free software world have repositories, distributions, and mirrors; copies of source code are hosted by companies willy-nilly. Suppose that some company had mirrored a copy of a Linux distribution, with its thousands of constituent programs, each of which might embody one or more patents. Then that same company, because it is an authorized licensee for such of those patents as the company itself either held or had a right to use (by virtue of being in one or more patent pools or cross-licensing arrangements), would have exhausted those patent rights with respect to that software. Lindberg did add a caveat, however: courts frequently try to avoid surprising outcomes, therefore a court might follow the argument but decide not to allow it anyway.

At this point, Lindberg reminded attendees that Microsoft bought GitHub. After a short pause, the entire room, with a large proportion of lawyers in the audience, giggled, a sound that can only be described as chilling, then applauded. He then went further and proposed an N-way merge across copies of code bases sanitized by different distributors with respect to their different patent portfolios, to create code bases that are exhausted with respect to all patents that all those various distributors are authorized to use.


That Microsoft part is neither funny nor worthy of the applause. It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment. Maybe one day it will use the same tactics to push all code -- private code too -- into GitHub (for a fee).

While it seems unlikely that Alice is going away (any time soon), it's worth keeping vigilant. The CCIA's Joshua Landau wrote on Twitter [1, 2] about Iancu's attitude towards patent trolls and Alice: "This quote is a problem. American *patents* don’t treat anyone; progress does. Might need patents to make that progress, but as @PatentScholar, @colleen_chien, etc., argue, we don’t know for sure. Iancu could pursue the policy experiments to prove it. Not his priority. [...] The quote is symbolic of the misconception held by far too many - apparently including the @uspto director - that patents have inherent value, as opposed to being an instrument to drive progress and only being valuable insofar as they do so."

"It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment."Iancu is disgracing the U.S. Patent and Trademark Office (USPTO) by deliberately ignoring caselaw and granting patents he knows to be fake (like the President who gave him this job after his private firm had worked for him). Iancu is a symptom of the political meltdown and corruption under Trump. Decline in US patent quality has had the expected effect on litigation and application. Both are down, the former very sharply. It's good news to everybody but lawyers (remember where Iancu came from).

Seeing that there's no recourse, the lawyers have reverted to more action in Congress. Clueless Coons continues with his zombie legislation (two years in the making already [1, 2], still going nowhere in this fight against 35 U.S.C. €§ 101). It's a bill that will never pass because technology companies have more power than the litigation industry. Here is what the litigation industry's section of Bloomberg wrote some days ago:

House and Senate lawmakers are ramping up efforts to rewrite the definition of patent eligibility, in a bid to create greater legal certainty around patents held by pharmaceutical, life sciences and technology companies.

Lawmakers are quietly meeting with company and trade group representatives to ask for suggestions on how to rewrite Section 101 of federal patent law, which defines what inventions may be patented. The U.S. Supreme Court has issued a series of decisions on patent eligibility that practitioners say have left the law poorly defined. Companies are uncertain about what inventions are patentable, and which granted patents can survive challenges.

“There have been a few Supreme Court rulings that have affected the ability of the patent office to know with certainty what is patentable, particularly in the realm of medical diagnostics and computer software, and these are areas of great growth,” Rep. Hank Johnson (D-Ga.), the new chairman of the House Judiciary’s intellectual property subcommittee, told Bloomberg Law.


This "Bloomberg Law" thing is just a litigation lobby in "news" clothing; we wrote about it before. We're not surprised that they try to give rather than clip wings of this zombie legislation, which can be safely ignored for now (there are more such bills and they too have vanished).

"The person in question is an Internet troll, not just a patent troll."It is also not surpising that patent maximalists like Dennis Crouch have not gotten tired of trying to push Section 101 questions into SCOTUS. Seeing that all these abstract patents are finished (good for nothing but putting in a frame and hanging on the wall like a trophy), they urge patent maximalists to give persuasive input and compel Justices to reevaluate the Federal Circuit's stance.

It truly bothers these patent maximalists that not only courts throw out software patents (we have just seen several new outcomes to that effect and added these to our daily links because we no longer cover American patent cases); Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have the same effect at a much broader scale (thousands of patents). Get used to it.

Speaking of SCOTUS, mind last night's article about an upcoming case. Authored by Mike Masnick, it deals with two topics that TechDirt likes to cover: patents and attacks on free speech. "Calling a company a patent troll is not defamatory," Masnick asserted. Here's the introduction:

Over the years, there have been a few attempts -- usually by companies that most of us would call patent trolls -- to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the "patent troll" name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.


The person in question is an Internet troll, not just a patent troll. He has been trolling me in Twitter even though I ignored him. A long time ago I came to consider that person to be borderline insane or a stalker and I was rather shocked to learn that the Supreme Court will give him even a minute of its time. Who next in SCOTUS? David Ike?

Recent Techrights' Posts

Slopwatch: LinuxSecurity, UbuntuPIT, and Google News
We've also just noticed more slop from UbuntuPIT
Microsoft Windows is No Longer an Operating System, It's Surveillance Project
Why is this even legal to preload on PCs outside the US?
 
The Slop Song
The train wreck marches on
LLM Slop/Advanced Plagiarism Flooding the Zone With Capital That Does Not Exist
Many publishers out there still participate in this bubble instead of calling it what it is
Links 09/10/2025: Sacked Microsoft Workers Make "Sackbird", IBM Taps CockroachDB for PostgreSQL
Links for the day
"Happy Hacking Day" Richard Stallman Talk This Afternoon (From 14:00 to 16:00) at Haaga-Helia University in Pasila
Richard Stallman in Helsinki, Finland
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 08, 2025
IRC logs for Wednesday, October 08, 2025
Links 09/10/2025: Impact of Microsoft Layoffs, More Data Breaches
Links for the day
Gemini Links 09/10/2025: Autumn Blues and C IRC Bot
Links for the day
Slopwatch Appreciated by Real Authors of GNU/Linux Articles
We do try to keep on top of those things
Upgraded R.R.R.R.R.R. Today
The Web of 2025 is full of garbage, not limited to slopfarms
Freedom From Proprietary Prisons
Forking always an option
IBM's Watson Died in 1956, Now Watson Dies Again
IBM is becoming just a reseller of GAFAM and other stuff
Microsoft Says That Constant Mass Layoffs Are Success, the Media Isn't Buying This Microsoft Narrative Anymore
If people in the media feel an obligation to repeat whatever lies Microsoft tells, what point will there be to the media?
Links 08/10/2025: "Mali Puts Free Speech on Trial" And Apple Enforces Dictatorship
Links for the day
Links 08/10/2025: ‘Death to Spotify’ and Law to Ban Loud Commercials on Streaming (Dis)Services
Links for the day
Links 08/10/2025: Real Innovation and Nina.chat is Dead
Links for the day
Links 08/10/2025: Y2K38 Bug is a Vulnerability, Chat Control in Europe a Threat
Links for the day
How and Why Once-Legitimate Sites Turn Into Slopfarms
Many sites will go offline and many social control networks will shut down once they realise or even openly admit they spend money and time gardening a bunch of bots and slop
UbuntuPIT Became a Slopfarm and Gnoppix Tarnishes Its Own Brand With Slop
It fits all the characteristics of mildly-edited (if at all) slop
Slopwatch: Linux Journal and Other Slopfarms
GAFAM needs to go the way of the dodo
Gemini Links 08/10/2025: "Seek Seek Revolution" and Gradient Backgrounds
Links for the day
Qualcomm Arduino Takes Aim at Raspberry Pi
Qualcomm is a Microsoft partner
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 07, 2025
IRC logs for Tuesday, October 07, 2025
Stagnation of the Economy and What Free Software Can (or Could) Do For It
If your economic model is based on a pyramid of lies, it won't last very long
Social Control Media is Sinking
it would rightly seem like the era of centralised "social" sites (they're not social, they're about controlling the users) is ending, not overnight but gradually
Participation in Cancel Culture Detrimental to One's Career
A cautionary tale
Passion Wins
we've increased the number of birds we feed to 100+
How Solderpunk and Sean Conner Started Gemini Protocol (and, Collectively, Geminispace) Back in 2019
Based on the "official" history
Arduino is Now a Patent Bully (Qualcomm)
Qualcomm has just bought Arduino
Many Years of Microsoft Cancellations and Faked (Acquired) Revenue "Growth"
XBox is basically the "next Skype"
The Comment TheLayoff.com Has Just Censored for Criticising a Ridiculous Puff Piece of IBM Management
If comments get censored for their "style" rather than their substance, then society will be worse off
The Power of Writing Down Facts
The more we write and publish, the more people will know what happened
Microsoft's Non-Denying Denial About XBox's Death is Already Being Shattered to Pieces
Like Microsoft's 'open' 'hey hi', heralding meaningless non-committing agreements with AMD is little more than vapourware
Slopwatch: UbuntuPIT Joins the Slopfarms Club
Slopfarms gonna slop
Links 07/10/2025: Privacy at Risk, GAFAM Remains Off the Hook
Links for the day
Gemini Links 07/10/2025: Modern Retro Console Idea and Batch vs Bash
Links for the day
Links 07/10/2025: International Criminal Court (ICC) Convicts Ali Kushayb; Moroccan Imprisoned for 'Offensive' Shirt
Links for the day
Links 07/10/2025: EU' Chat Control is Back, US Cracks Down on Democracy
Links for the day
Techrights Pursues Justice and Truth Because, Without Those, Society Descends Into Chaos
most people reject dogma and pseudoscience
Upcoming Talks by Richard Stallman in Helsinki, Göteborg, and Rome
Join with him and share the software
Something Bad is Happening in the Open Source Initiative (OSI)
The latest OSI blog post is from a Microsoft operative and a few weeks ago the Executive Director left
TLS 1.3 Dominates Geminispace (99% of Known Capsules)
it's nowadays safe to assume almost every capsule can handle TLS 1.3
Why soylentnews.org Has Been Having Technical Difficulties Lately
The network has been going up and down quite a lot this past week
A Statement Against Violence
The facts are on our side
They've Run Out of Things to Rebrand or Label as "AI"
The next few years will be interesting because if Microsoft lays off tens of thousands of workers each year, there won't be much left except mountains of debt and dying brands
The Register MS is Still Being Paid to Participate in the "AI" Ponzi Scheme Which Will Crash the Economy
The Register MS is hoping to get lucky by tricking people into a scam
Richard Stallman Confirms His Talk in Göteborg This Coming Friday
"The hosts say that the list will not be given to the state"
Most of the "Linux" Results This Morning in Google News Are LLM Slop From the Same Slopfarm, Plagiarising Phoronix
The main question is, does Google even care at this point?
Gemini Links 07/10/2025: Civil War and "Goodbye Web"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, October 06, 2025
IRC logs for Monday, October 06, 2025