Bonum Certa Men Certa

An Unexpected Reality: The Court of Appeals for the Federal Circuit Emerged as a Champion in Fighting Software Patents in the US

Software patents impose a “deadweight loss on the nation’s economy”, said Circuit Judge Haldane Mayer a few months ago

Haldane Robert Mayer



Summary: How the highest court below the Supreme Court lends a hand to the destruction of software patents in the United States (and by extension perhaps the entire world)

THE Federal Circuit (CAFC) has been growingly supportive of patent reform. CAFC even eliminated a lot of software patents, in lieu with the ruling on Alice.



CAFC is far from perfect, but it used to be one of the worst and now it's actually one of the best. From being a big proponent of software patents (back in the Rader days) it's now an opponent of them. Even Mayer, traditionally the proponent of software patents, is now strongly against these. The longer it goes on for, the lower the certainty software patents enjoy. See this new article titled "Federal Circuit Continues The Case-By-Case Approach For Determining Patent Eligible Subject Matter".

"CAFC even eliminated a lot of software patents, in lieu with the ruling on Alice."According to this new article, changes are afoot. "Since a preliminary injunction is ordinarily awarded well before any final judgment on the merits," Patently-O explained the other day, "nobody actually knows which side will win the case. Because of the powerful nature of injunctive relief, the courts have long required that the party seeking relief to at least prove that it will likely win the case. Although termed a “factor” in the four factor analysis, it is actually a necessary element that must be proven before relief will be granted. “The movant must establish both “likelihood of success on the merits and irreparable harm” for the court to grant a preliminary injunction.”"

As Patently-O points out further down: "With the broader construction, the Federal Circuit remanded to consider whether the presented prior art creates an invalidity problem."

"What we don't wish to end up pursuing is some kind of a system which, rather than reward, simply punishes inventors and makes their lives harder."There are two principal criteria for invalidation: one is prior art and another is triviality or abstractness tests. With both 'tools' at hand, software patents are in a rather weak position at this Federal level. What happens a lot post-Alice is, companies attempt to sue others using software patents and merely burn their own pockets. IAM has this new "report" titled "Monetary consequences for falsely alleging patent infringement" and Patently-O, writing again about CAFC, mentions pre-AIA law in relation to a particular case which is deems likely the "Last Inventorship Case". To quote: "Based upon these (and a few other) facts, Mylan argues that (1) the ’patent had been derived from someone at the FDA – and therefore the patentee was not the “inventor” as required by pre-AIA law, 35 U.S.C. 102(f); and (2) the invention would have been obvious in light of the FDA communications. On appeal, however, the Federal Circuit affirmed the lower court holding siding wholly with the patentee."

While we are still waiting to see what happens to AIA and the USPTO Director under Trump (there are conflicting rumours about that) we sure hope to see more of the same progress -- something along the lines of reducing patent scope. Red Hat's OpenSource.com published "making-us-patent-system-useful-again" only a few days ago. "In the U.S. patent system," it said, "if maintenance fees are not paid, an issued patent goes into the public domain. Find out how to search the database."

Remember that the original purpose of patents was exactly that. The temporary monopoly was a reward or compensation for doing that.

What we don't wish to end up pursuing is some kind of a system which, rather than reward, simply punishes inventors and makes their lives harder. That is exactly what software patents have done to programmers. Take Compuverde for example; based on its new press release, it has nothing to brag about except software patents (which are rather useless in the US these days).

As we noted earlier in the week, software patents do get accepted by CAFC on rare occasions, but one cannot rely on any of this. In almost 80% of the cases last year CAFC agreed with PTAB, which is still killing a lot of patents and certain firms -- not law firms of course -- are loving it enough to pay for press releases about it.

Recent Techrights' Posts

Perpetual Strikes to Begin at European Patent Office (EPO), Large Majority Votes for Strikes Any Day of the Week
Approved industrial actions [...] Notice how none of the media or even so-called 'IP' blogs write about it
 
Slides From the Presentation Discussing EPO Strikes Until End of June or Until End of 2026 (Maybe Next Year Too)
More to come soon (later today)
IBM Cuts Are Everywhere (Global), the Aim is to Lower the Pay
Because the revenues keep falling (IBM buys other companies' revenues using borrowed money)
Mozilla is Not a Privacy Company, Mozilla is Run by GAFAM Executives and Managers Who Came From American Surveillance Companies
Would you trust a VPN they claim to be "free"?
SLAPP Censorship - Part 25 Out of 200: That Time Matthew J. Garrett Got Temporarily Banned/Suspended From Twitter
That he gets banned from large social control media platform is hardly surprising given his combative communications
Ubuntu Started as Free With ShipIt, Now It Becomes Payware That Exploits Debian Volunteers (Slaves)
"Ubuntu" the distro now replaces the GNU components inherited from Debian with a bunch of Microsoft GitHub (proprietary) things that reject reciprocal licences
Last Night The Register MS Published a Fake Article. It Mentioned "AI" 27 Times.
Paid-for nonsense! [...] What's left of once-respectable news sites actively harms society
Links 27/03/2026: Google Executive (GAFAM, US, Surveillance) "Named the New BBC Head", Prominent Climate Scientist Resigns From NASA
Links for the day
Gemini Links 27/03/2026: "Being Busy" and "Posting Again"
Links for the day
GNOME Has No "Real" Executive Director, Only an IBM (Perma)'Interim' One With No Openings in Sight
GNOME is having financial problems
Microsoft Experiencing "Leadership Exodus"
Microsoft's current position is no better than Meta's (Facebook)
GNU/Linux Distros Should Reject "Age Verification" and Uphold Software Freedom for Users
It's not about protecting children
Slop Plunge
we can already "smell the blood" of the so-called 'AI industry'
IBM Media Puff Pieces While Layoffs Go On and On
Has the PR industry absorbed the press?
Media Says Microsoft Hiring Freezes, But There Are Already Microsoft Layoffs
They want the public to talk about Microsoft as if it's just not hiring when it is actually firing
Richard Stallman lynchings: Sruthi Chandran splitting Debian
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 26, 2026
IRC logs for Thursday, March 26, 2026
Links 26/03/2026: Tor Relay at National Taiwan Normal University, Copyright Hammers Fall
Links for the day
Gemini Links 26/03/2026: "The War of the Worlds" and "sometimes science is just the dumbest thing"
Links for the day
The World Wide Bots
The shape of the Web is so bad that bots exceed humans in some places
Links 26/03/2026: Solicitors Regulation Authority (SRA) Closes 101 Law Firms in 2 Years, "Please Compensate the Work You Appreciate"
Links for the day
Regaining Software Freedom Means Regaining Control Over Programs That Run on Our Devices
Richard Stallman will speak in Italy
Microsoft Secure Boot Removes Users' Choice
Has Greenland banned Microsoft and 'secure' boot yet?
IBM Pushes Workers Out, It Does Not Count Them as "Layoffs"
The number of IBM layoffs can be as large as tens of thousands per year
Hard to Find a Job After Working for Microsoft (Back Doors Giant, Bribery Hub)
It generally looks like people who chose to serve Microsoft's agenda don't end up too well
Microsoft Lost 31% Of Its Alleged "Value" in Five Months, Then It Got Downgraded
In 2026 Microsoft focuses on keeping the layoffs silent
Altering Perceived Reality to Make It Seem Like Microsoft is Thriving, Not Failing
pretend XBox did not die
SLAPP Censorship - Part 24 Out of 200: The Failed Effort by Brett Wilson LLP to Strike Out My Lawsuit and My Wife's Lawsuit Against Garrett (the Master Allowed Our Lawsuits to Proceed)
This is lawfare
Official New Figures Show That Solicitors Regulation Authority (SRA) Sees Rise in Dishonesty Among Law Firms Forcibly Shut Down ('Euthanised' Due to Misconduct)
It's rather if in our little country as many as 16 law firms were found to be so dishonest that they needed to be shut down
Back to Normalcy
In our datacentre at least
IBM is "Increasing Its Temporary and Part-time Headcount" While Net Headcount Falls (Despite Buying Many Companies and Their Workforce)
Headcount is a rather superficial yardstick.
Confluent Insiders: IBM Laid Off Over 800 at Confluent, Not Just 800
For the record, the layoffs at Confluent won't be over. After the bluewashing there will be "IBM RAs" impacting Confluent folks, aside from PIPs
EPO Union Decides to Continue Industrial Actions, Next Strike in Four Days
The latest strike had the highest participation rate
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 25, 2026
IRC logs for Wednesday, March 25, 2026
Microsoft's "Silent Layoffs" in Slop Clothing
"AI-powered transformation" is just a euphemism for mass layoffs
Where and How to Spot LLM Slop
Many people correctly perceive LLMs as a site's downfall, a step towards the abyss
Public Talk by Richard Stallman in Half a Day "at the Engineering and Architecture Campus of Cesena of the University of Bologna"
He'll probably attract a fairly large crowd
Gemini Links 26/03/2026: Buying a House, Stargazing, OFFLFIRSOCH 2026
Links for the day
Links 25/03/2026: Nations Return to Russian Oil and Burning Wood
Links for the day
Gemini Links 25/03/2026: Resisting Authoritarianism and Why Slop Needs to Go Away
Links for the day
Fedora Maintainer-ship Using Slop (Mistakes) Would Make Fedora Less Reliable
It won't produce reliable code or stable systems one can rely upon
IBM's "Legacy Employees" (Experienced Workers, IBM Management Dubs Them 'Dinobabies')
This notion of "legacy employees" seems like something overlapping with "expensive" (well paid) staff, even if not entirely equivalent
EPO's "Current Industrial Actions Are Likely to Intensify Further."
There is another strike in 5 days
This Morning The Register MS Published Slop Promotion With the Term "AI" 15 Times In It. The Register MS Was (As Usual) Paid to Do This
This is not a serious publisher
SLAPP Censorship - Part 23 Out of 200: We Were Right All Along (for 2 Years) About Third Party Funding and Willingness to 'Break the Bank' in Pursuit of "Revenge"
How much damage can a person do to oneself in pursuit of cover-up of legitimate technical concerns?
Gnome Foundation Inc is in Trouble
the agenda is set GAFAM and IBM rather than donors
Links 25/03/2026: Airports Further Militarised, "Slopification and Its Discontents", Microsoft 'Open' 'Hey Hi' Shutting Things Down
Links for the day
Gemini Links 25/03/2026: Blogging Fright and Absolutely Useless 'Apps' Made by Slop Machines
Links for the day
Rise in Energy Prices Will Significantly Accelerate the Death of So-called "AI Companies"
It should be noted that fake news about Microsoft OpenAI doubling workforce (mere words, not actions) can serve as a nice distraction from the death of Sora due to divestment
It's Always a Question of Trust
There's a widespread stigma of lawyers being manipulative and chronically dishonest
Solicitors Regulation Authority (SRA) Must More Carefully Investigate or Assess the Financial State of Law Firms in the UK
We'll cover this in depth in the future
GAFAM Mozilla Removes Theora Support, Now GNU Needs to Re-encode Videos
Mozilla used to mean something to Free software advocates
An Open Admission Profits Depend on Addiction
Proprietary software tends to be like this
IBM Americas President Ayman Antoun Comes to OpenText, Weeks Ahead the Mass Layoffs Begin
Is that what IBM will be good at?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 24, 2026
IRC logs for Tuesday, March 24, 2026