Bonum Certa Men Certa

Software Patents Are Against the First Amendment, Rules a CAFC Judge in Historic Decision That is Another Nail in the Software Patents Coffin

Screenshots taken by Jan Wildeboer (Red Hat)

Opinion on IV



Opinion on IV



Summary: Further reinforcing the current trend, software patents' demise in the United States has just been ascertained again, even if legal firms and patent maximalists prefer not to comment on it (as it would give this latest decision more visibility)

THE latest decision (see portions above) from the Court of Appeals for the Federal Circuit (CAFC) is eye-catching, but either it hasn't caught the eye of legal firms or they're just trying to ignore it, so we'll be covering it more than we usually cover such decisions. We have made a local copy [PDF] (original here) of the full decision. We also mentioned it earlier today and yesterday, reaffirming that several software patents are dead, potentially implicating many more (by precedence/extrapolation).



Jan Wildeboer wrote to us (and few others) [1, 2]: "Wow! Software patents can violate #1stamendment according to #CAFC judge! [...] Can't get enough. Judge defines patent trolls. #CAFC level. Huge. Page 36..."

Some people are also writing to us about it in our IRC channels today. They want this subject covered.

Where is the news coverage about it? It has been several days since this decision and patent law firms are still a month behind the times (McRO again), obsessing over very old news. Consider as a new example Sterne Kessler Goldstein & Fox's "Patent Rights in the U.S.: Is the Pendulum Finally Swinging Back to Center?" (earlier today)

They speak about McRO while ignoring everything that has happened since. Shame on them. It seems as though bad legal advice from patent law firms is becoming the norm. They mislead scientists for cash (litigation, patent applications etc.), attempting to convince them that patents on algorithms are still a 'thing' after Alice. One does not even need to sue a company with software patents in order to lose these patents, owing to inter partes reviews (IPRs). The above lawyers reveal their biases with their obligatory rants about PTAB, stating that "PTAB [is] causing uncertainty over validity and enforcement of patents."

We are still waiting to see patent law firms which offer their bogus 'analyses' (if any) of this latest CAFC ruling on software patents; they hope we don't see it, judging by the fact that only Patently-O wrote about it (we covered it this morning). The ruling is very important because it serves to demonstrate a loss for patent trolls and for software patents (or patent trolls that use software patents, which is typical). The decision criticises patent trolling as well.

Judging by this new press release (from Trend Micro, which is itself a patent aggressor, not the patent microcosm), some other companies breathe in relief.

So far, based on our research, only one press article has been published about this decision. It's titled "Here’s Why Software Patents Are in Peril After the Intellectual Ventures Ruling" and it says:

The end may be in sight for software patents—which have long been highly controversial in the tech industry—in the wake of a remarkable appeals court ruling that described such patents as a “deadweight loss on the nation’s economy” and a threat to the First Amendment’s free speech protections.

The ruling, issued on Friday by the U.S. Court of Appeals for the Federal Circuit, found that three patents asserted against anti-virus companies Symantec symc and Trend Micro were invalid because they did not describe a patentable invention. The patents were owned by Intellectual Ventures, which has a notorious reputation in the tech world as a so-called “patent troll,” a phrase that describes firms that buy up old patents and wage lawsuits in order to demand payments from productive companies.

[...]

Software Patents as a Threat to Free Speech



Friday’s ruling is also significant because Judge Mayer eschews the insider baseball language that typically dominates patent law, and addresses patents in the broader context of technology and government monopolies.

Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as “fair use” and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as “Section 101,” which says some things—including abstract ideas—simply can’t be patented in the first place.


IAM 'magazine' has not said anything about this decision. So much for 'news'; it was so quick to crow about McRO (beating everybody to it), but not a word about Intellectual Ventures? They have just released a new issue of the magazine and this time the Intellectual Ventures troll is not on their main feature/cover page (puff pieces galore); not this time around...

Over at Twitter IAM wrote: "Trolls don't fight it out in the courtroom. They seek to leverage low quality patents to secure quick licensing wins" (does not mention Intellectual Ventures)

Funny that IAM mentions the VirnetX case but not Intellectual Ventures, which speaks directly to IAM. This case was actually mentioned here twice in the past few days alone and it was challenged in court. David Kravets wrote about it, publishing this article that clarifies Texan courts (i.e. notorious bias) ruled on it, not CAFC:

An East Texas jury concluded late Friday that Apple must pay a patent troll $302.4 million in damages for infringing two patents connected to Apple's FaceTime communication application.

The verdict is the third in the long-running case in which two earlier verdicts were overturned—one on appeal and the other by the Tyler, Texas federal judge presiding over the 6-year-long litigation.

The latest outcome is certain to renew the same legal arguments that were made in the earlier cases: Apple, for one, has maintained all along that the evidence doesn't support infringement. VirnetX, as it did in the past and is now doing, is seeking more damages for what it says is "willful" infringement on Apple's part. What's more, in the previous litigation, the Nevada patent-holding company had asked the judge to shutter the Apple service at issue. Apple has maintained that such a demand was made "So that it can be used to extract a massive licensing fee."

The case began with four of VirnetX's patents (1, 2, 3, 4), which had originated at a company called Science Applications International Corporation, or SAIC. VirnetX has been saying for years that it plans to market various products, but its income comes from licensing patents.


If Apple can escalate this upwards, then a court like CAFC would quite likely invalidate the patents, as usual. The higher one goes (in the courts/legal system), the less room for mischief and leeway for software patents. It's a shame that courts lower down don't obey rulings that are handed from above, especially courts that are based in Texas.

Comments

Recent Techrights' Posts

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"
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
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
Evidence Contradicting Microsoft's Non-Denying Denials and Expectation of Many Layoffs Soon
"Microsoft has had this constant drip of layoffs for months."
 
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
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
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
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
The "AI Revolution" is Going Very Well, Right?
money that does not exist and alleged potential that is pure fiction
Links 06/10/2025: Scam Altman Himself Admits He Runs a Scam Based on a Bubble, US Administration Adopts “War From Within” Narrative to Crush Opposition/Dissent
Links for the day
Slopwatch: Fake Ubuntu 'Articles' and Google News Helps People Who Plagiarise Phoronix Using LLMs
Michael Larabel can't possibly be happy about that
6,000 Pages/Articles a Year
Today in one month from now the site turns 19
When Things Become So Ubiquitous That They're Almost Nameless
The notion or the concept of software freedom isn't tied to any particular brand or project, so it should still resonate
At Least 3 Richard Stallman Talks in Europe Confirmed So Far, Next Week in Rome There's Another
Dr. Stallman has not announced this yet
IDG Seems to Have Abandoned Sandra Henry Stocker's UNIX/Linux Column
Unless we hear otherwise or see some update/s, this may mark another death blow from IDG
Gemini Links 06/10/2025: Winter Nights and "Virtue Signaling"
Links for the day
Links 06/10/2025: Scientific Awards and Typhoon Matmo
Links for the day
IP Kat Gone Bonkers, Pushing Slop in Patents (Likely Illegal, With Severe Consequences)
AstraZenecaKat: "Last time, this Kat covered some practical steps on how to ensure client confidentiality when using AI tools (IPKat)."
Links 06/10/2025: Grokipedia as Malicious Slop, US 'Martial Law' a "New Normal"
Links for the day
Fake Economics and Clown Computing Circuses
who's gonna pay for these scams?
Nobel Prize in Economics Does Not Exist, It's Propaganda From Sveriges Riksbank
"It is that time of the year when it is important to remind people that there are no Nobel Prizes for professional wrestling, astrology, or economics"
Rust is Eating Linux
That's a recipe for problems
Cindy Cohn (Executive Director of EFF) is a Millionaire, Earned Almost $30,000 Per Month Before Departing While the EFF Lost Money
EFF is "Big Business"
Non-Denying Denial From Microsoft (Again) Regarding the End of XBox Consoles
It's kind of hilarious that even the site chosen by Microsoft to relay its BS, based on past loyalty, isn't quite buying it
Bringing Back Lost Articles From the 1990s: Microsoft Products Leave Door Open to NSA
Nothing has changed since then
When the Slop Bubble Pops People Will Say Richard Stallman Was Right (Again)
What was once known as Computer Science turned into "IT"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, October 05, 2025
IRC logs for Sunday, October 05, 2025
Links 06/10/2025: Science, Hardware, and Andrej Babis Making a Comeback
Links for the day
Links 05/10/2025: Slow News Day and Wondering About the Canada Post Walkout
Links for the day
Gemini Links 05/10/2025: Telnet Debugging and The Programmer’s Brain
Links for the day
More Than "Just a Rumour": XBox Seems to Have Just Died
At this point, why would any studio out there target or partner with XBox?
How to Tell Your Community, Project or Company is Being Infiltrated by Saboteurs
How to identify nefarious social engineering
The Fortieth Birthday of the FSF Made Us Extremely Happy
It feels like the 'hacker community' is regrouping to discuss things and prepare for the next Big Challenge
Chat Control 2 Them, Not 2 U
Follow the advice of Dr. Patrick Breyer
Mozilla: Throw Away Your "Old" PC and Enable "Digital Rights Management (DRM)"
This is heading in a bad direction
Controlling Our Computing for Another Forty Years
40 years of freedom
Motivational Small Place to Run Large Sites
We deem this scenery motivational and inspiring
Techrights' Text Version (Daily Bulletin) Turns Five This Month
our plain-text bulletins are turning 5 this month
We'll Continue Covering the Moribund OSI and Other Dysfunctional if Not Hostile Institutions
Stefano Maffulli's departure is due to his defection and due to him failing the mission in pursuit of money (his salary)
Microsoft XBox is Dying as More Retailers Stop Stocking It and Massive Layoffs Planned Again
Microsoft is circling down the drain
Links 05/10/2025: Lufthansa Layoffs (4,000) and More Spotify Woes (Aside From Massive Debt)
Links for the day
The Free Software Foundation's Livestream Has Ended, Video/s Might be Online Next
I've asked whether they'll upload video of some of the event; I still wait for an answer
The Register MS Does Not Know the Difference Between Microsoft GitHub and GitLab
At the time of writing (October 5) the article from "Thu 2 Oct 2025" remains uncorrected
Linux and the Freedom Paradox
Linux is losing freedom if some external actors who only use Microsoft tools for development wrest control
"Bullshit Generators" (What RMS Calls LLMs) and Fake Images Already Target the FSF
Why does Google News promote fake articles about the FSF while omitting all the real ones?
Software Patents as a Bubble
Don't invest resources in hype; if you detect a bubble, run away from it
Links 05/10/2025: Political Leftovers, Climate Change, and Security Incidents
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, October 04, 2025
IRC logs for Saturday, October 04, 2025