Gemini version available ♊︎

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

Posted in America, Patents at 5:11 am by Dr. Roy Schestowitz

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]).

Share in other sites/networks: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Reddit
  • email

Decor ᶃ Gemini Space

Below is a Web proxy. We recommend getting a Gemini client/browser.

Black/white/grey bullet button This post is also available in Gemini over at this address (requires a Gemini client/browser to open).

Decor ✐ Cross-references

Black/white/grey bullet button Pages that cross-reference this one, if any exist, are listed below or will be listed below over time.

Decor ▢ Respond and Discuss

Black/white/grey bullet button If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

DecorWhat Else is New

  1. Links 19/1/2022: XWayland 22.1 RC1 and OnlyOffice 7.0 Release

    Links for the day

  2. Links 19/1/2022: ArchLabs 2022.01.18 and KDE's 15-Minute Bug Initiative

    Links for the day

  3. When Twitter Protects Abusers and Abuse (and Twitter's Sponsors)

    Twitter is an out-of-control censorship machine and it should be treated accordingly even by those who merely "read" or "follow" Twitter accounts; Twitter is a filter, not a news/media platform or even means of communication

  4. IRC Proceedings: Tuesday, January 18, 2022

    IRC logs for Tuesday, January 18, 2022

  5. Links 19/1/2022: Wine 7.x Era Begins and Istio 1.12.2 is Out

    Links for the day

  6. Another Video IBM Does Not Want You to Watch

    It seems very much possible that IBM (or someone close to IBM) is trying to purge me from Twitter, so let’s examine what they may be trying to distract from. As we put it 2 years ago, "Watson" is a lot more offensive than those supposedly offensive words IBM is working to purge; think about those hundreds of Red Hat workers who are black and were never told about ethnic purges of blacks facilitated by IBM (their new boss).

  7. What IBM Does Not Want You to Watch

    Let's 'Streisand it'...

  8. Good News, Bad News (and Back to Normal)

    When many services are reliant on the integrity of a single, very tiny MicroSD card you're only moments away from 2 days of intensive labour (recovery, investigation, migration, and further coding); we've learned our lessons and took advantage of this incident to upgrade the operating system, double the storage space, even improve the code slightly (for compatibility with newer systems)

  9. Someone Is Very Desperate to Knock My Account Off Twitter

    Many reports against me — some successful — are putting my free speech (and factual statements) at risk

  10. Links 18/1/2022: Deepin 20.4 and Qubes OS 4.1.0 RC4

    Links for the day

  11. Links 18/1/2022: GNOME 42 Alpha and KStars 3.5.7

    Links for the day

  12. IRC Proceedings: Monday, January 17, 2022

    IRC logs for Monday, January 17, 2022

  13. Links 17/1/2022: More Microsoft-Connected FUD Against Linux as Its Share Continues to Fall

    Links for the day

  14. The GUI Challenge

    The latest article from Andy concerns the Command Line Challenge

  15. Links 17/1/2022: digiKam 7.5.0 and GhostBSD 22.01.12 Released

    Links for the day

  16. IRC Proceedings: Sunday, January 16, 2022

    IRC logs for Sunday, January 16, 2022

  17. Links 17/1/2022: postmarketOS 21.12 Service Pack 1 and Mumble 1.4 Released

    Links for the day

  18. [Meme] Gemini Space (or Geminispace): From 441 Working Capsules to 1,600 Working Capsules in Just 12 Months

    Gemini space now boasts 1,600 working capsules, a massive growth compared to last January, as we noted the other day (1,600 is now official)

  19. [Meme] European Patent Office Space

    The EPO maintains a culture of illegal surveillance, inherited from Benoît Battistelli and taken to a whole new level by António Campinos

  20. Gemini Rings (Like Webrings) and Shared Spaces in Geminspace

    Much like the Web of 20+ years ago, Gemini lets online communities — real communities (not abused tenants, groomed to be ‘monetised’ like in Facebook or Flickr) — form networks, guilds, and rings

  21. Links 16/1/2022: Latte Dock 0.11 and librest 0.9.0

    Links for the day

  22. The Corporate Cabal (and Spy Agencies-Enabled Monopolies) Engages in Raiding of the Free Software Community and Hacker Culture

    In an overt attack on the people who actually did all the work — the geeks who built excellent software to be gradually privatised through the Linux Foundation (a sort of price-fixing and openwashing cartel for shared interests of proprietary software firms) — is receiving more widespread condemnation; even the OSI has been bribed to become a part-time Microsoft outsourcer as organisations are easier to corrupt than communities

  23. EPO's Web Site Constantly Spammed by Lies About Privacy While EPO Breaks the Law and Outsources Data to the United States

    The António Campinos-led EPO works for imperialism, it not only protects the rich; sadly, António’s father isn’t alive anymore and surely he would blast his son for doing what he does to progress his career while lying to staff and European citizens

  24. Links 16/1/2022: Tsunami and Patents

    Links for the day

  25. IRC Proceedings: Saturday, January 15, 2022

    IRC logs for Saturday, January 15, 2022

  26. Links 16/1/2022: Year of the GNU/Linux Desktop and Catch-up With Patent Misinformation

    Links for the day

  27. Patrick Breyer, Unlike Most German Politicians, Highlights the Fact That Unified Patent Court (UPC) and Unitary Patent Are Incompatible With EU Law

    A longtime critic of EPO abuses (under both Benoît Battistelli and António Campinos leadership), as well as a vocal critic of software patents, steps in to point out the very obvious

  28. Links 15/1/2022: Flameshot 11.0 and Libvirt 8.0

    Links for the day

  29. Blogging and Microblogging in Geminispace With Gemini Protocol

    Writing one’s thoughts and other things in Geminispace — even without setting up a Gemini server — is totally possible; gateways and services do exist for this purpose

  30. Links 15/1/2022: Raspberry Pi in Business

    Links for the day

RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time

Recent Posts