Bonum Certa Men Certa

Patents Roundup: RPX Grows, Netflix Issues a Patent Challenge, More on In Re Bilski

Netflix logo



Summary: Potpourri of software patent news from the past week and a half (focused on the United States)

HAVING taken a break for a while, a lot of patent news piled up. Here are the important bits of information from the United States:

Association of Press Release Distributors, LLC ("Association of Press Release Distributors, LLC fight against #swpat on publishing press releases on websites," emphasises Rui Seabra)

There are hundreds of press release distribution companies. Most exist with little to no interaction with each other in their industry. That ends today.


RPX Client Network Grows 150% in Six Months (see our Wiki page about RPX)

The new clients include global electronics companies NEC Corporation and Hitachi, Ltd.; infrastructure software provider Novell, Inc.; semiconductor manufacturer Nanya Technology Corporation; software developer Lawson Software, Inc.; wireless voice and data solutions provider Leap Wireless International Inc.; speech-recognition leader Nuance Communications, Inc.; and the world’s largest bookseller, Barnes & Noble, Inc.


Netflix Tries to Fix One Part of the Patent System

There's a very interesting case, Media Queue v. Netflix, where Netflix is asking the Federal Circuit to revisit the standard for awarding attorneys' fees. Here's their appeal brief [PDF]. It would like the court to create parity between plaintiffs and defendants. Right now, the system tilts to help plaintiffs recover their fees if willful infringement is demonstrated, which is fairly easy to demonstrate. But defendants wrongfully sued have little hope of success when asking that their legal fees be covered, unless they can prove the claims were objectively baseless or brought in bad faith, a mighty high bar to get over. Netflix would like to change that to allow district courts to have discretion to award attorneys fees when folks bring litigation unlikely to succeed.

[...]

Netflix, in short, is asking the court to think about defendants who are attacked with very weak patents, and who then are more or less pragmatically forced to settle rather than fight, just because it's cheaper. If they can't get their attorneys' fees paid, what in the world makes them whole? Netflix says Media Queue is "a non-practicing entity," which is the polite way to call such entities. Setting an "objectively reckless" standard is a lower bar than proving frivolity or bad faith, and Netflix seems to be of the opinion that patent holders with weak patents are over-incentivized to bring questionable and very costly litigation, knowing they are unlikely to have to pay their victim's attorneys' fees, which can typically be in the millions.


NTP Keeps On Making The Case For Patent Reform As It Sues More Companies

Company suing eBay for $3.8B: eBay “unfairly stole the idea” of e-Payment systems

Another day, another major lawsuit. This time, a company called XPRT Ventures LLC has sued eBay for allegedly stealing “the idea and method of payment used in eBay’s PayPal and similar electronic payment systems” according to the press release put out by the XPRT’s lawyers Kelley Drye & Warren LLP.


Write Brothers, Inc. Celebrates a Decade at Comic-Con International 2010

Write Brothers currently holds three software patents. It holds two for the Dramatica€® story assistant, and one for the timeline-based presentation of text used in the StoryView™ outlining software. Streamline is the fourth technology patent Write Brothers has filed.


Microsoft will offer test versions of Dynamics CRM in September

Microsoft biggest competitor in this arena is Salesforce.com, which sells a Web-based software service for customer relationship management. The two companies are currently suing each other over software patents.


There is still a lot of new coverage about the Bilski case:

The silver lining in the Bilski decision isn't where most people believe ("Florian Müller" warning -- he is sometimes misguided in his targeting of issues)

About two weeks ago the Supreme Court of the United States (SCOTUS) handed down its opinion in re Bilski, a business method patent case. The patent application was rejected, but in a way that didn't draw any kind of line that would affect patents on software technology.

[...]

Let's better face this fact: there isn't a single killer argument against software patents that will convince a non-programmer if that same counterpart has also heard the pro-patent argument. If you can ever convince a majority of decision-makers, you'll have to do it indirectly. The direct approach has been tried by many people for many years -- to no avail (except, as I mentioned before, in a defensive situation).


Patent Litigation Weekly: Eben Moglen on Bilski, Software Patents, and Big Pharma

Moglen's position on the subject of software patents—that they should be banned—is, to say the least, outside the mainstream in legal circles. It has, however, garnered support among software developers and other techies, especially those who work in the world of open-source and free software.

Moglen's critique of the patent system extends well beyond the software issues he writes about, however. He suggests, for instance, that the 20-year monopoly granted by a patent is the product of a bygone era. And though he rejects the notion that he is "anti-patent," he says that the patent monopoly grant should be subject to a rigorous cost-benefit analysis, not simply handed out at the "monopoly window" that he believes the current Patent and Trademark Office represents.


Sanity From the 1st Post-Bilski Decision from BPAI: In Re Proudler

Look at this, will you? The first decision from the Board of Patents Appeals and Interferences post-Bilski to reference that US Supreme Court decision, in In Re Proudler [PDF], a ruling rejecting HP's application for a software patent, setting forth a rule stating, as I read it, as saying software is not patentable because it's an abstraction:
Laws of nature, abstract ideas, and natural phenomena are excluded from patent protection. Diamond v. Diehr, 450 U.S. at 185. A claim that recites no more than software, logic or a data structure (i.e., an abstraction) does not fall within any statutory category. In re Warmerdam, 33 F.3d 1354, 1361 (Fed. Cir. 1994). Significantly, "Abstract software code is an idea without physical embodiment." Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 449 (2007). The unpatentability of abstract ideas was confirmed by the U.S. Supreme Court in Bilski v. Kappos, No. 08-964, 2010 WL 2555192 (June 28, 2010).
This is not the last word, I'm sure, as HP can certainly try to reword. But don't you find this encouraging? I do. And that's why I wanted it in our permanent record of the Bilski case and its aftermath.


First Post-Bilski Patent Appeals Ruling Rejects Software Patent (Bilski precedence is already killing patents)

Well, well, well. Following the rather ridiculously vague Bilski ruling, that doesn't actually say what the right test should be for whether or not business methods or software should be patentable, many people have been wondering what it really means. While some of the justices have hinted at the idea that most software really isn't patentable, that's not at all clear from the ruling. Instead, the ruling suggests that the courts come up with a new test, and then the Supreme Court will tell them whether or not that new test is okay. Many software patent system supporters have interpreted this to mean that software patents are perfectly okay. But perhaps they shouldn't go that far just yet.


Post-Bilski Decision

One of the first decisions post-Bilski has shot down an appeal of a rejected patent application by HP. The patent-examiner had rejected the patent on the grounds of prior art (It’s mostly AND applied to rules for passing data…) but the appeal-board rejected the claims on the grounds of non-patentability


From the Editors: The Supreme Court’s road not taken

Bilski patent ruling will increase costs of doing business, says expert

United States: The Supreme Court Rules That The Process in Bilski is Not Patentable, But Refuses to Foreclose The Patentability of Business Methods

Bilski, Business Method Patents and the Uncertainty Principle

Bilski: One Step Forward... Two Steps Back

Inventors Given Hope on Patents for Business Methods

Software, pharmaceutical, and business method patents survive

A Close Call for Silicon Valley

Death Knell For Software Patents

United States: The Long-Awaited Bilski (In) Decision

[Ben Klemens on] Bilski and software patents

Should software be patentable?

It seems to me that the concept of certain generic sorts of software patents could well be made redundant thanks to the growth of open source, while remaining for specialist applications that have a technical purpose.


Patent Office Says No to Supreme Court and Software Patents

Startups and University Research: Too Much Emphasis on Patents?

When the Supreme Court ruled last month on the Bilksi case, denying Bilski's patent claim that Bilksi's patent but not making any real statements on the overall patentability of business methods or software, several opponents of software patents, including VCs Jason Mendelson and Brad Feld expressed their disappointment.

[...]

The study surveyed over 11,000 professors, and of the 1948 who responded who had started businesses, only 682 - about a third - had established them to exploit the patents obtained via the university intellectual-property systems. The remaining 1266 respondents had started businesses based on non-patentable knowledge.


Supreme Court On Patenting

Software patent advocates are praising the said decision of the Supreme Court like Tom Syndor saying that the Supreme Court was sensible in rejecting the said idea. A new layer and era of patent decade will help in requiring patent applicants to present plaintiffs to prove that their ideas are not abstract.


Paul Kedrosky's article "Software Patents Need to Be Abolished" has spread further (also published in other places with Brad Feld, who is a critic of software patents [1, 2, 3]).

Recent Techrights' Posts

The Same People Who Attacked Richard Stallman (RMS) Are Attacking Daniel Pocock to Discourage People From Listening to His Information
Pocock is being demonised for the same reasons and by the same people who attack RMS
We Are Safe in a Modern "Tech" Society, Right?
People are safer if they control their own computing
The Way Things Are Going, They May Soon Stop Saying "Web Address" and Instead Say "Chrome Address"
The Web isn't built or based around open Web standards anymore. It's centered around user-agent.
Microsoft as a Golden Cage
"I was laid off by Microsoft and can't find a job. I'm weeks away from giving up my apartment and moving across the country to live with family."
Weekend Discussion About How IBM's Bluewashing of Red Hat Will Cause "Enshittification" for Users
"I worked at a software company that was acquired by IBM so I knew it was game over for RedHat the day they were acquired"
Brett Wilson LLP Getting Sued by Its Very Own Clients, a Legal Story That Has Made the Mainstream News (Law360)
Law360 or Law.com are about as mainstream as one can get in that "sector" (litigation 'industry')
Lucas Nussbaum & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
 
Vincent Danjean (not INTERPOL), Claire Bardel & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Christmas lynchings: Martin Krafft (madduck), Penny Leach (mjollnir) & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Gemini Links 13/10/2025: Birthdays and "Committee Unable to Contact Nobel Prize Winner"
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 12, 2025
IRC logs for Sunday, October 12, 2025
Your Typical Anti-Richard Stallman (RMS) Cancellist
"About the RMS cancellation"
Richard Stallman (RMS) Has Announced His Talk in Rome Less Than 20 Hours in Advance (and on a Sunday)
Why did he wait until the night before?
GNU Tools Cauldron Event in Portugal: Videos Now Available via Invidious
Go have a look
Slopwatch: GNU/Linux Sites That Became Slopfarms and Spamfarms
The Web is a mess and "Linux" or "Ubuntu" sites became part of the problem
Richard Stallman's Talk 25 Hours Away, Aula Magna Palazzo del Rettorato (CU001), Sapienza Università di Roma (Piazzale Aldo Moro, 5)
The talk is 25 hours away and we see some QR code for it
Gemini Links 12/10/2025: Watches, the Depression of 2026, Gamboling with Odds
Links for the day
Links 12/10/2025: 'False' DMCA Claims and Slop Facing Perils Again (the Hype Wears Off)
Links for the day
Microsoft Has Just Lost Privacy Case in Austria and Its Latest Moves Make a Complete Ban Seem Imperative
Microsoft is not a software company, it's a spying agency that uses software to collect data
The Register MS: Microsoft is the Security Expert, Not the Prime Culprit, So Buy More Microsoft
This front page feature is devoid of any actual substance, it's just Microsoft copypasta
Paris 'Love Nest' & Debian Outreachy: from Lycée Lakanal to ENS Cachan, Cr@ns, nepotism
Reprinted with permission from Daniel Pocock
Stefano Zacchiroli (Zack) & Debian pregnancy cluster
Reprinted with permission from Daniel Pocock
Gemini Links 12/10/2025: "Palm Computering", Further Exploration of Slide Rules, and Key Takeaways from The Well-Grounded Rubyist
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 11, 2025
IRC logs for Saturday, October 11, 2025
Tomorrow: Founder of the Free Software Foundation and of GNU/Linux, Richard Stallman, Speaks in Roma (Rome), Italy at 4PM
GNU/Linux is more important than ever in this dystopian world
Microsoft and Apple Are Rare Topics in Geminispace
in Geminispace it's rather safe to assume everyone is into BSD, GNU/Linux, and sometimes retro
Qualcomm and Manchester United Appear to Have Dumped Microsoft (Qualcomm Now Invests More in Linux, Apparently)
It's a relief to no longer see Microsoft logos and brands on a local football club's gear (I'm not a Manchester United fan, but not a foe either)
As Guest of Honour in Rome, Founder of the Free Software Foundation to Speak ("Distinguished Lecture") After Introduction by Leonardo Querzoni
Happy hacking...
All Things Open is Proprietary
The OSI has become a front group of proprietary software openwashers, led and sponsored by proprietary giants
When Microsoft Lays Off Lots of Workers They Say It "Invests in AI" (a Lie), Now It's "Reshuffles" or "Microsoft Tightens"
Microsoft "news" by bots
"I saw Richard Stallman give a talk in the mid 80s, which began my fear and loathing of software patents" and "Richard Stallman was always right."
"By betraying the legacy of our ancestors, we’ve set ourselves on a path toward self-destruction — moral, intellectual, economic, and ultimately biological."
There Were Several Waves of Microsoft Shanghai Layoffs in 2025, Western Media Continues to Turn a Blind Eye to Chinese Layoffs of an Epic Scale
Sometimes select Taiwanese news sites (published in English) or automated translations are all we have
Brett Wilson LLP Spreads Trumpism to the United Kingdom, Looking to Profit From 'Legal Colonialism' (Overriding Sovereignty)
There's growing recognition of this conundrum worldwide
The Demise of Shopping in Person
In a world like this, how valued is the customer?
This Past Friday, "Nearly 700 People Came to Listen to RMS!" (Richard Stallman)
"Nearly 700 people came to listen to RMS!"
Distinguished Lecture by Richard Stallman This Coming Monday in Rome
After "Free software, Crucial for Freedom in a Digital World"
Slopwatch: UbuntuPIT Churning Out Plagiarism and the Slopfarm LinuxSecurity Turns to Pseudonyms
Our hunch is, UbuntuPIT will sooner or later realise that this toxic approach is just harming UbuntuPIT and tainting the reputation of past articles
The Lawsuit by Clients of Brett Wilson LLP Against Brett Wilson LLP is Officially On, It is Progressing, The 'Experts' Pick Outside Law Firms (RPC and Mills & Reeve) to Spare Them From Litigants in Person
So it is probably quite potent
Gemini Links 11/10/2025: Nyctography, Gerrymandering, and Lurking
Links for the day
The 'Culture Wars' in Free Software Have Gone Out of Control
Social control media amplifies such utterly infantile discourse
Teaser: To Compensate for the Fact Our Clients Are Terrible Human Beings Who Strangle Women (While on Microsoft's Payroll) and We Get Paid by Mystery Parties We Bombard You and Your Wife With Almost 10 Kilograms of Legal Papers
If you can't win an argument, then drown the other side with papers?
Links 11/10/2025: World Mental Health Day 2025, Another European Legal Defeat for Microsoft 360
Links for the day
MIT Technology Review is Part-Time SPAMfarm of Billionaires and Mega-Corporations
Does MIT operate its own "b2b" SPAMfarm?
Open Source Initiative Executive Director Leaves, Replacement Sought by Monopolists, Not the Community or OSI Members
Serves to show who runs this show...
Links 11/10/2025: China-US Tensions Grow Again, "Hey Hi" More Widely Recognised as Bubble Made of Capital That Doesn't Exist
Links for the day
Now Confirmed in Western Media: Microsoft Azure Layoffs This Month
Affirmed by more sources moments ago
Peter O'Callaghan QC represented grandparents, Westernport Hotel, at Liquor Royal Commission
Reprinted with permission from Daniel Pocock
Either The Register MS Divests From FOSS Coverage or Liam Proven is on Long Holiday
Publishers perish when their audience loses trust in them
Microsoft Cancelling Another Datacentre is a Sign of Financial Trouble and Lack of Growth
The debt continues to grow
Gemini Links 11/10/2025: An Evening at the Fair and Fast Fourier Friday
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 10, 2025
IRC logs for Friday, October 10, 2025