Bonum Certa Men Certa

In the Courts, Where Patents Are Assessed Independently, Geeks Are Winning the Battle Against Parasitic Litigation Firms

All we see from the "big litigation" lobby these days is court- or judge-bashing

Trump and Iancu



Summary: Mockery of courts and disdain for the law come not from productive industries but from unproductive 'industries' that are doing nothing but patents and litigation; they have completely and undeniably lost the argument

LAST month we published the Internet Association's comments on the "Revised Patent Subject Matter Eligibility Guidance", which sought to work around or overcome 35 U.S.C. €§ 101 (similarly, bypassing the courts, EPO President António Campinos works around the EPC to grant software patents in Europe).



"The patent zealots have nothing left but court- or judge-bashing."There are troubling signs that the litigation lobby will try anything it takes to work around the law. Weeks ago we mentioned Coons et al coming back with their ludicrous (and old) pile of papers. TechDirt's founder has just commented on it, but we don't believe these comments are even necessary anymore. They have been trying it for years and it always fails. They keep renaming and rebranding the same pile of papers. This time too it's already off the headlines; completely. Like UPC.

In Mike Masnick's own words:

For most of the history of Techdirt, we've talked about what an incredible mess the US patent system has been. There are many, many reasons for this, but a big one was that for decades, the appeals court that handles all patent cases, the Court of Appeals for the Federal Circuit (or CAFC), kept expanding what it considered to be patentable subject matter, and the Supreme Court completely ignored the issue. This culminated, ridiculously, in the State Street decision, which massively expanded what was considered patentable software (before that there was software covered by patents, but it was very, very limited). What made this situation truly hellish for innovators, is that (1) the software world was exploding with all different kinds of apps, and (2) almost no software was documented in the very few areas where patent examiners look for prior art: mainly, other patent applications and scientific journals. There was no need to document software in those places, because (1) when most people recognized software shouldn't be patented, very few even tried, and (2) why would you?

That resulted in a perfect storm in which patent trolls rushed in to fill the void. Tons upon tons of ridiculously broad patents were filed (or older ones were dug up and "repurposed" for use in trolling). Then it just became a shakedown game of numbers. Find companies doing something vaguely like what's broadly and oddly described in your patent, tell them they're infringing -- and offer to "settle" for less than the cost to win in court.

The tide started to change over the last decade and a half or so, in part because of a few changes to the law, but more importantly, the Supreme Court started to wake up to the fact that the CAFC had gone rogue and had massively rewritten patent law. And then over a period of about a decade, case by case by case, the Supreme Court smacked down CAFC. Two of the biggest such smackdowns came in the Mayo Labs ruling in 2012 which rejected medical diagnostic patents, and the Alice ruling in 2014, which rejected patents on software that performs "generic functions" (which is basically all software).


The patent zealots have nothing left but court- or judge-bashing. We've just noticed that Paul Morinville is once again attacking US courts (in Watchtroll, as usual) just shortly after losing in the Federal Circuit (an appeal of a decision from the Patent Trial and Appeal Board (PTAB)). Watchtroll is a toxic site which attacks science and justice. We refuse to even link to it any longer. James Nurton (formerly of think tank Managing IP, now writing in Watchtroll) has a new headline there: "Iancu Calls on Federal Circuit to Fix Section 101 Problem" (Iancu the Trump flunky is just another Battistelli, wrongly thinking he 'bosses' the courts). Curiously enough, corporate media, especially in the US, loves talking about corrupt Trump appointments... except that of Iancu, whose firm had worked for Trump before he got the job at the U.S. Patent and Trademark Office (USPTO). Nurton, as it turns out, cites a think tank of litigators, funded by corporations like Microsoft. "Speaking at the 27th Intellectual Property Law & Policy Conference at Fordham Law School on April 25, Mr. Iancu said the interpretation of Section 101 is “the most important issue of substantive patent law currently”..."

Bristows (Annsley Merelle Ward) is still writing about it in IP Kat (twice more yesterday [1, 2]), pushing the agenda of patent trolls and law firms, as usual. And Managing IP is, as usual, only asking lawyers (of trolls in this case, an Ericsson proxy) for their views on Unwired Planet v Huawei. "By taking a FRAND showdown between Unwired Planet and Huawei," said the summary, "the UK Supreme Court can show that it’s not afraid to make bold decisions on global disputes if others won’t, lawyers tell Managing IP..."

They never bother asking technical people. When James Nurton worked there they were doing lots of puff pieces for him, including UPC propaganda and 'interviews' with softball questions.

In more positive news, Josh Landau (CCIA) says there's a bill in the making to discourage patent trolls. Massachusetts State Sen. Eric "Lesser and Ehrlich hope to protect innovation against fraudulent and bad faith assertions," he wrote yesterday. This one would actually protect technical people:

Across the United States, two-thirds of all states have introduced legislation that targets bad faith patent assertion by entities like MPHJ and Shipping and Transit. Massachusetts State Sen. Eric Lesser and State Rep. Lori Ehrlich are trying to make Massachusetts the most recent state to join this club.

Lesser and Ehrlich recently re-introduced their bad faith assertion bill that would allow victims of bad faith patent assertions to recover reasonable attorney’s fees and other costs incurred in defending themselves from a bad faith assertion. By allowing recovery of defense fees against these sorts of plaintiffs, Lesser and Ehrlich hope to protect innovation against fraudulent and bad faith assertions.


As usual, there's a silent war between technical people and lawyers in "Home of the Brave" (where you have to be brave to create something as extortion may be around the corner). At the moment geeks have the upper hand.

Recent Techrights' Posts

Nonfree Software in My Bank, by Richard Stallman
Updated 8 hours ago
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
 
This Monday WebProNews Absolutely Flooded the Web With Fake (LLM Slop) 'Articles' About "Linux", Google News Promoted Them as Legitimate
All of the following are fake articles attributed to pseudonyms or authors that don't exist; the images are also slop. Why does Google promote these?
Linuxiac is Not a Slopfarm, But at Least Some of Its Articles Are Machine-Generated Fakes
what we said about it was correct
Expect More Microsoft Layoffs
"Are more job cuts coming?"
Microsoft Behaving Like It's Running Out of Money to Pay Salaries
Does that seem like the behaviour expected from a company which claims it is "worth" trillions?
LWN Downtime Due to Linode, Not LLM Bots
"I’ve received an email letting me know that there is a potential for data loss."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 28, 2025
IRC logs for Monday, July 28, 2025
Links 28/07/2025: Science, Health, and Conflicts
Links for the day
Gemini Links 28/07/2025: Healthy Self-Image With Autism and a "New Life"
Links for the day
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles