06.14.16

Gemini version available ♊︎

Enfish Case Has Not Salvaged Software Patents in the US, Proponents of Software Patents Admit

Posted in America, Law, Patents at 9:40 am by Dr. Roy Schestowitz

Much ado about [En]fish…

Fish

Summary: A roundup of news about software patents in the United States and why the media’s narrative (dominated by patent lawyers) clouds a rather grim reality for software patents, even after the Enfish v Microsoft case

THE USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.

SCOTUS and Halo v Pulse

“The USPTO continues to grant software patents, but relying on Alice at the US Supreme Court (SCOTUS), reassessments by courts or panels typically invalidate these.”Based on this new tweet, SCOTUS now recognises the patent trolls issue and even names it as such. This commentary on trolls ought to take into account the strong correlation between patent trolling and software patents (which trolls typically use). Here is what Patently-O wrote about SCOTUS just now: “The Supreme Court today issued an important unanimous decision in Halo v. Pulse – vacating the Federal Circuit’s rigid limits to enhanced damages in patent cases. The decision rejects the dual objective/subjective test of Seagate as “inconsistent” with the statutory language of 35 U.S.C. §284.”

The problem is, irrespective of damage limitations, patent trolls (which may be the spilling of a company’s patent portfolio acting as satellites) can just attack many thousands of firms or people, taxing each in turn. So loopholes remain in tact and overall it’s pretty ugly.

Court of Appeals for the Federal Circuit (CAFC)

It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC). Remember that it was CAFC which started software patenting in the first place and recently ruled in favour of Enfish, getting software patents proponents/maximalists (such as patent lawyers) all giddy and jubilant as though software patents are back with vengeance (they’re not).

Free Software

“It is worth noting that there’s an ever-growing gap between the judgment of USPTO examination — as per the management’s guidelines — and what US courts actually say, even corrupt courts like the Court of Appeals for the Federal Circuit (CAFC).”Software patents are problematic to software developers, no matter if they develop Free software or proprietary software. It’s probably a bit more of a problem for Free software developers because in order to freely distribute copies of their software they must not be coerced into making patent payments to anyone. “Patents and the open-source community” is a new article from LWN which deals with the topic. It is a very long article about a panel in which Professor “Moglen advised separating the past from the future when discussing tactics. For the future, he said, “we should prevent people from getting patents.” But, in the past, the problem is old patents “rising up and smiting” projects, harming innovation. The work that Choudhary does trying to abolish patents, he said, covered how to protect people in the future—and he fully expects SFLC to continue that work, arguing in front of the Supreme Court about the “design patent” case between Apple and Samsung. Furthermore, he said, “open-source software is an immense repository of prior art. Free software can help by educating people on all that we’ve invented and that you therefore cannot reinvent and patent.””

Samsung and Apple

Speaking of this (above-mentioned) “design patent” case between Apple and Samsung — a case which we last wrote about in the weekendFlorian Müller who dislikes Moglen (he once again told off the SFLC a few days ago) has “all the documents and the key points”. To quote his blog: “There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one. Previous rounds of amicus curiae briefs already demonstrated broadbased support. But the level of support the petition has just received at this decisive stage exceeds my expectations.”

Days ago we explained why this is relevant and important to Free software. Previously we also explained why design patents are often similar if not indistinguishable from software patents (UI+callback function/s).

Patent Lawyers Upset

“There never was any doubt that the question of whether the infringement of a single design patent by a complex, multifunctional product warrants an unapportioned disgorgement of profits would be an extraordinarily important one.”
      –Florian Müller
Suffice to say, patent lawyers almost always support claimants (never mind justice or innovation). They want a lot of money to swap hands because it’s their source of revenue, other than/aside from obscenely high hourly charges. “How the United States Patent Office Became the Place Where Patents Go To Die” is an example of a new article which bemoans quality control and it is promoted by the usual suspects. It's not exactly surprising that the bubble is now imploding. Patent quality became a joke and over-evaluation of patents ensued. Opponents of the Alice decision continue to cheer for software patents (“Uber files patent on hyperlocal internet search” in this case), but sadly for them, the boat is leaving and software patents are now weaker (in the US) than they have ever been since their introduction by CAFC. “Recall that Enfish comes from a single CAFC panel,” IBM’s Manny Schecter wrote the other day, “when the CAFC ruled en banc in Alice it was splintered” (as a reminder, Schecter is a proponent of software patents not only in the US).

Reality Check From Software Patents Proponents

“I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections.”
      –IP Watchdog
We were rather amused to find the most pro-software patents site out there publishing “Is Enfish Much Ado About Nothing?” The gist of it is that the Enfish decision hardly changed anything at all. To quote the key part: “I am thus concerned that Enfish will not be as useful as hoped in overcoming §101 Alice rejections. The patents at stake in Enfish appear to have been written with a confident view of the prior art and of the invention. So, if a specification does not confidently emphasize the “invention,” its “benefits over” conventional prior art, and “disparage” the prior art, will examiners and judges continue Step 1 characterizations at “such a high level of abstraction”? Is Enfish merely much ado about nothing?”

Yes, it is. Patent lawyers tried to over-emphasise it in order to change public opinion and influence policy-making people. The patent salespeople, on the other hand (in the same site), hope that this one single case will save software patents, not just at the USPTO but also at the courts. They are not paying attention to any case other than the Enfish v Microsoft case. How convenient…

Software Patents Proponents in Denial

Almost a month later (after the decision) Baker Botts LLP is still cherry-picking cases in an effort — however shallow — to shore up software patents. Banana IP (Banana Republic?) does the same kind of lobbying. We have already covered dozens of examples like these. These helped show how the media, especially lawyers’ media, continues to simply ignore every single case that’s ruled against software patents and lean on the rare exceptions instead. Edward Bray (of Marks & Clerk) is now cross-posting his ‘analysis’ in favour of software patents — an ‘article’ (lobbying/marketing) which we mentioned the other day. It just never stops, does it? Even a month later.

“Is Enfish merely much ado about nothing?”
      –IP Watchdog
The USPTO is doing the same thing, as we noted last month on a couple of occasions. Here is an explanation of how it goes: “Abstract idea – #USPTO memo on how the #CAFC Enfish patentability decision obstructed Alice http://www.uspto.gov/sites/default/files/documents/ieg-may-2016_enfish_memo.pdf … #swpat”

The patent office too is latching onto a single case when it serves to ‘sell’ more patents for more revenue. No separation between examination and policy?

Evidence serves to suggest that no matter what USPTO greed does, the courts continue to crush software patents, even after the Enfish decision. “Patents Directed to Electronic Delivery of Messages Found Ineligible in AZ in GoDaddy v. RPost,” Patent Buddy wrote the other day, linking to http://assets.law360news.com/0805000/805041/2016-06-07%20(doc%20344)%20order%20granting%20godaddy_s%20motion%20summary%20judgment%20and%20vacating%20trial%20dmwest_14483743(1).pdf (Alice is mentioned dozens of times in this decision’s PDF).

Many software patents have just died not only in the courts but also at PTAB, so how can patent lawyers argue with a straight face that a lot has changed? “Fatal Flaws of Subjective Alice/Mayo 101 Test [Are] Now Becoming Evident in Contradictory Findings Across Dist. Courts,” Patent Buddy wrote, but why is that test “subjective”? Because patent attorneys and lawyers don’t like it? Because it threatens their profit/income?

The matter of fact is that some courts get it right (they can see that algorithms are abstract), whereas some are still rather clueless (or bad lawyers for the defendant) if not corruptible, as was the case at CAFC before. Microsoft had a lot to gain from losing that case, as we explained last month.

“LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents.”Here is a case of software patents being used against Facebook, which has been stockpiling patents on software. To quote Patently-O: “Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database. Thus, applying this in LinkedIn, you might find that references to “Dennis Crouch” point to my LinkedIn profile. Of course, the way that Facebook & LinkedIn operate does not create the pointer-link for all occurrences of the term.”

LinkedIn will soon be owned by Microsoft, which is itself a leading proponent of software patents. What will this mean? Remember that the Enfish decision too involved Microsoft and people from Microsoft were pleased with the outcome. Speaking of Microsoft, the company is now hoarding software patents on quantum computing, based on this new listing. “Note that the USPTO also has a search engine for patent applications that are not yet granted,” wrote the author. “I am not listing those here. You can use that search engine yourself if you also want to see “Previews of the Coming Attractions”…”

Microsoft is by far the biggest threat to Free software when it comes to patent aggression.

Patents on Genome

“Indacon’s U.S. Patent No. 6,834,276 covers an improved database system that adds “custom links” so that instances of a “link term” would point to a particular file in the database.”
      –Patently-O
The Alice/Mayo test applies to more than just software. Bristows lawyers (i.e. patent profiteers who promote software patents) show no concerns about patent scope expansions. Based on this article from MIP, they aren’t going to say that patents on human genome are insane. Instead there’s promotion of that. As per the summary: “Genomic technology has rapidly created a multi-billion dollar growth industry. With life sciences companies scrambling in US and European courts for a share of the lucrative market, in-house IP counsel should start preparing for the next wave of IP litigation, explain Dominic Adair and Annsley Merelle Ward” (from Bristows).

Unless the USPTO gets a grip and stops granting patents on everything in nature, the valuation of patents and the confidence in the patent office will further erode, leaving patent lawyers reliant on illusions, lying to their potential customers, and overselling the prospects of patent litigation. How long can this madness last? It’s a bubble.

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 03/02/2023: OpenSSH 9.2 and OBS Studio 29.0.1

    Links for the day



  2. Links 03/02/2023: GNU C Library 2.37

    Links for the day



  3. Sirius Finished

    Yesterday I was sent a letter approving my resignation from Sirius ‘Open Source’, two months after I had already announced that I was resigning with immediate effect; they sent an identical letter to my wife (this time, unlike before, they remembered to also change the names!!)



  4. The Collapse of Sirius in a Nutshell: How to Identify the Symptoms and Decide When to Leave

    Sirius is finished, but it's important to share the lessons learned with other people; there might be other "pretenders" out there and they need to be abandoned



  5. Links 03/02/2023: WINE 8.1 and RapidDisk 9.0.0

    Links for the day



  6. Links 02/02/2023: KDE Gear 22.12.2 and LibreOffice 7.5

    Links for the day



  7. Linux News or Marketing Platform?

    Ads everywhere: Phoronix puts them at the top, bottom, navigation bar, left, and right just to read some Microsoft junk (puff pieces about something that nobody other than Microsoft even uses); in addition there are pop-ups asking for consent to send visitors’ data to hundreds of data brokers



  8. Daily Links at Techrights Turn 15, Time to Give Them an Upgrade

    This year we have several 15-year anniversaries; one of them is Daily Links (it turned 15 earlier this week) and we've been working to improve these batches of links, making them a lot more extensive and somewhat better structured/clustered



  9. Back to Focusing on Unified Patent Court (UPC) Crimes and Illegal Patent Agenda, Including the EPO's

    The EPO's (European Patent Office, Europe's second-largest institution) violations of constitutions, laws and so on merit more coverage, seeing that what's left of the "media" not only fails to cover scandalous things but is actively cheering for criminals (in exchange for money)



  10. European Patent Office Staff Votes in Favour of Freedom of Association (97% of Voters in Support)

    The Central Staff Committee (CSC) at the EPO makes a strong case for António Campinos to stop breaking and law and actually start obeying court orders (he’s no better than Benoît Battistelli and he uses worse language already)



  11. Links 02/02/2023: Glibc 2.37 and Go 1.20

    Links for the day



  12. IRC Proceedings: Wednesday, February 01, 2023

    IRC logs for Wednesday, February 01, 2023



  13. Links 01/02/2023: Security Problems, Unrest, and More

    Links for the day



  14. Links 01/02/2023: Stables Kernels and Upcoming COSMIC From System76

    Links for the day



  15. IRC Proceedings: Tuesday, January 31, 2023

    IRC logs for Tuesday, January 31, 2023



  16. Links 31/01/2023: Catchup Again, Wayland in Xfce 4.20

    Links for the day



  17. Links 31/01/2023: elementary OS 7

    Links for the day



  18. Intimidation Against Nitrux Development Team Upsets the Community and Makes the Media Less Trustworthy

    Nitrux is being criticised for being “very unappealing”; but a look behind the scenes reveals an angry reviewer (habitual mouthpiece of the Linux Foundation and Linux foes) trying to intimidate Nitrux developers, who are unpaid volunteers rather than “corporate” developers



  19. Links 31/01/2023: GNOME 44 Wallpapers and Alpha

    Links for the day



  20. Free and Open Source Software Developers' European Meeting (FOSDEM) and KU Leuven Boosting Americans and Cancellers of the Father of Free Software

    The Free Software Foundation (FSF) and its founder, Richard M. Stallman (RMS), along with the SFLC one might add, have been under a siege by the trademark-abusing FSFE and SFC; Belgium helps legitimise the ‘fakes’



  21. Techrights in the Next 5 or 10 Years

    Now that I’m free from the shackles of a company (it deteriorated a lot after grabbing Gates Foundation money under an NDA) the site Techrights can flourish and become more active



  22. 60 Days of Articles About Sirius 'Open Source' and the Long Road Ahead

    The Sirius ‘Open Source’ series ended after 60 days (parts published every day except the day my SSD died completely and very suddenly); the video above explains what’s to come and what lessons can be learned from the 21-year collective experience (my wife and I; work periods combined) in a company that still claims, in vain, to be “Open Source”



  23. IRC Proceedings: Monday, January 30, 2023

    IRC logs for Monday, January 30, 2023



  24. Taking Techrights to the Next Level in 2023

    I've reached a state of "closure" when it comes to my employer (almost 12 years for me, 9+ years for my wife); expect Techrights to become more active than ever before and belatedly publish important articles, based on longstanding investigations that take a lot of effort



  25. The ISO Delusion: When the Employer Doesn’t Realise That Outsourcing Clients' Passwords to LassPass After Security Breaches Is a Terrible Idea

    The mentality or the general mindset at Sirius ‘Open Source’ was not compatible with that of security conscientiousness and it seemed abundantly clear that paper mills (e.g. ISO certification) cannot compensate for that



  26. Links 30/01/2023: Plasma Mobile 23.01 and GNU Taler 0.9.1

    Links for the day



  27. EPO Management Isn't Listening to Staff, It's Just Trying to Divide and Demoralise the Staff Instead

    “On 18 January 2023,” the staff representatives tell European Patent Office (EPO) colleagues, “the staff representation met with the administration in a Working Group on the project “Bringing Teams Together”. It was the first meeting since the departure of PD General Administration and the radical changes made to the project. We voiced the major concerns of staff, the organization chaos and unrest caused by the project among teams and made concrete proposals.”



  28. Links 30/01/2023: Coreboot 4.19 and Budgie 10.7

    Links for the day



  29. IRC Proceedings: Sunday, January 29, 2023

    IRC logs for Sunday, January 29, 2023



  30. [Meme] With Superheroes Like These...

    Ever since the new managers arrived the talent has fled the company that falsely credits itself with "Open Source"


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