Bonum Certa Men Certa

Patently-O is Still Trying to Derail Patent Reform in the United States

Trolly-O Patently-O



Summary: A look at the past week's posts from Patently-O reveals a blog whose tone shifts strongly against patent sanity and instead leans towards the patent 'industry'

A LOT of people regard Patently-O as/to be the "best" patent blog and many also consider it to be objective and balanced. We dispute that in view/light of recent posts from Patently-O, which were not only hostile towards PTAB (especially over the past half a year) but also friendly to patent trolls and apathetic at best towards USPTO patent quality. Using scholarly/academic veneer, Patently-O serves to reinforce patent extremism in the same way that some right-wing "news" sites embolden or reinforce white supremacy. The same cannot be said about other academics, who are mostly pro-patent reform (we've named many over the years).



"Using scholarly/academic veneer, Patently-O serves to reinforce patent extremism in the same way that some right-wing "news" sites embolden or reinforce white supremacy."The main writer at Patently-O is Dennis Crouch, who regularly attends events of the patent microcosm. According to him, Trump and his swamp might soon be defunding USPTO to have it run like a business rather than a service. We have not seen this suggestion anywhere else, so maybe it's an expression of a wish rather than a reality. Do we need another 'Battistelli' at the USPTO? To quote Crouch:

And, an interesting feature of the 2018 Republican House Proposed Budget is shrink the Department of Commerce – currently “rife with waste, abuse, and duplication,” and “Establish the U.S. Patent and Trademark Office as an independent agency.”


It is already independent enough as it is. Decoupling it would make things even worse. Crouch already contributed -- along with Watchtroll and IAM -- to driving Michelle Lee out. Does he want to exacerbate things even further? Probably. Yesterday he even advertised IAM.

The more dysfunctional things get, the lower patent quality will get and thus more lawsuits -- something which these people profit from. From chaos comes order? No, to them, from chaos comes income/funding. It's rather appalling.

"The more dysfunctional things get, the lower patent quality will get and thus more lawsuits -- something which these people profit from."The patent 'industry' likes to pretend that Alice is ambiguous (or not sufficiently clear) because these people simply refuse to accept reality. No software patents are tolerated by high courts anymore and Dennis Crouch is nowadays participating in immature caricatures that bash Alice. Where it says "patent industry" it actually alludes not to a real industry but a predator/parasite which sends legal threats. Actually, Alice helped a great deal and brought benefits to the real industry. Why don't they get it? Why can't they just move on? They have been trying to take a Supreme Court's decision down for nearly four years now.

According to another new post, Dennis Crouch would even side with patent trolls if he perceived it as an opportunity to help software patents. To quote:

A new amicus brief supports RPost petition for writ of certiorari – arguing that lack-of-eligibility is not a proper defense to patentability. The brief has an interesting quote from P.J. Federico (co-author of the 1952 Patent Act) suggesting (by omission) that eligibility is not a litigation defense.


Is this encouraged as another anti-Alice 'trick'?

Either way, Patently-O seems to be getting less and less objective by the week. We have been following the blog for years and can tell the difference.

The other day it wrote about "Lost Profits", which is a loaded term which presumes entitlement to profit. This is how rich people typically think and Dennis Crouch, a rich person himself, put it like this:



Lost Profits: Like definiteness, lost profit award also requires “reasonable certainty.” In the lost profit context, the rule is applied in a more-standard approach. Namely, reasonable certainty is traditionally thought of as a standard of evidentiary proof needed for factual conclusions. This makes sense in the fact-heavy damages context but not so much in the indefiniteness arena that is very often seen as wholly a question of law.

Here, the appellate court held that lost profits due to the infringement were not proven because the district court did not consider whether a non-infringing alternative would have been an acceptable/available substitute to the patentee’s product. A new trial is necessary now to calculate the reasonable royalty damages that will presumably be less than the $2 million lost profit verdict overturned on appeal.


Last but not least (from the past week), Crouch spotted something in the Court of Appeals for the Federal Circuit (CAFC) which cites a case from 70 years ago. To quote: "At the point of Novelty: An interesting bit of the opinion harkens back to the Supreme Court’s 1946 Halliburton decision – holding that functional claim language is particularly problematic when done at the point of novelty. Here, the court does not cite Halliburton but does note that the “asserted advance over the prior art” is the particular layered arrangement of the device, not “the choices of materials to perform each of the required catalytic processes.” Rather, those materials were expected to be ones already well known in the industry.

"Here, of course, the Federal Circuit is not suggesting that Halliburton is good law, but the court does implicitly conclude that there are important distinctions in the indefiniteness analysis when considering terms directed to well-known versus novel features."

"It's possible to be courteous and hold terrible views at the same time; these things aren't contradictory."The Federal Circuit (CAFC) is very different nowadays. We've commended the new chief judge, who is preceded by at least two patent maximalists who left a legacy of mischief if not corruption (Rader). They supported patent trolls, software patents, and much worse. The Supreme Court is nowadays overturning many of these decisions.

We certainly hope that the Supreme Court will set the law (de facto/caselaw) instead of the old CAFC, which was good for nobody except the patent microcosm and people like Crouch.

Truth be told, the legal 'industry' is imploding in the US as far as patents go. There's less demand for it. That's how it should be. Expect blogs like Patently-O to moan and bemoan the status quo. Crouch may do this politely and professionally, but his views will still be rubbish. It's possible to be courteous and hold terrible views at the same time; these things aren't contradictory.

Recent Techrights' Posts

How to get selected for Outreachy internships
Reprinted with permission from disguised.work
Red Hat Corporate Communications is "Red" Now
Also notice they offer just two options: MICROSOFT or... MICROSOFT!
Links 26/04/2024: XBox Sales Have Collapsed, Facebook's Shares Collapse Too
Links for the day
 
Microsoft's XBox is Dying (For Second Year in a Row Over 30% Drop in Hardware Sales)
they boast about fake numbers or very deliberately misleading numbers that represent two companies, not one
Ian Jackson & Debian reject mediation
Reprinted with permission from disguised.work
[Meme] Granting a Million Monopolies in Europe (to Non-European Companies) at Europe's Expense
Financialization of the EPO
Salary Adjustment Procedure at the EPO Challenged
the EPO must properly compensate staff in order to attract and retain suitably skilled examiners
Links 26/04/2024: Surveillance Abundant, Restoring Net Neutrality Rules (US)
Links for the day
Gemini Links 26/04/2024: uConsole and EXWM and stdu 1.0.0
Links for the day
Albanian women, Brazilian women & Debian Outreachy racism under Chris Lamb
Reprinted with permission from disguised.work
Microsoft-Funded 'News' Site: XBox Hardware Revenue Declined by 31%
Ignore the ludicrous media spin
Mark Shuttleworth, Elio Qoshi & Debian/Ubuntu underage girls
Reprinted with permission from disguised.work
Karen Sandler, Outreachy & Debian Money in Albania
Reprinted with permission from disguised.work
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 25, 2024
IRC logs for Thursday, April 25, 2024
Links 26/04/2024: Facebook Collapses, Kangaroo Courts for Patents, BlizzCon Canceled Under Microsoft
Links for the day
Gemini Links 26/04/2024: Music, Philosophy, and Socialising
Links for the day
Microsoft Claims "Goodwill" Is an Asset Valued at $119,163,000,000, Cash Decreased From $34,704,000,000 to $19,634,000,000 and Total Liabilities Grew to $231,123,000,000
Earnings Release FY24 Q3
More Microsoft Cuts: Events Canceled, Real Sales Down Sharply
So they will call (or rebrand) everything "AI" or "Azure" or "cloud" while adding revenues from Blizzard to pretend something is growing
CISA Has a Microsoft Conflict of Interest Problem (CISA Cannot Achieve Its Goals, It Protects the Worst Culprit)
people from Microsoft "speaking for" "Open Source" and for "security"
Links 25/04/2024: South Korean Military to Ban iPhone, Armenian Remembrance Day
Links for the day
Gemini Links 25/04/2024: SFTP, VoIP, Streaming, Full-Content Web Feeds, and Gemini Thoughts
Links for the day
Audiocasts/Shows: FLOSS Weekly and mintCast
the latest pair of episodes
[Meme] Arvind Krishna's Business Machines
He is harming Red Hat in a number of ways (he doesn't understand it) and Fedora users are running out of patience (many volunteers quit years ago)
[Video] Debian's Newfound Love of Censorship Has Become a Threat to the Entire Internet
SPI/Debian might end up with rotten tomatoes in the face
Joerg (Ganneff) Jaspert, Dalbergschule Fulda & Debian Death threats
Reprinted with permission from disguised.work
Amber Heard, Junior Female Developers & Debian Embezzlement
Reprinted with permission from disguised.work
[Video] Time to Acknowledge Debian Has a Real Problem and This Problem Needs to be Solved
it would make sense to try to resolve conflicts and issues, not exacerbate these
Daniel Pocock elected on ANZAC Day and anniversary of Easter Rising (FSFE Fellowship)
Reprinted with permission from Daniel Pocock
[Video] IBM's Poor Results Reinforce the Idea of Mass Layoffs on the Way (Just Like at Microsoft)
it seems likely Red Hat layoffs are in the making
Ulrike Uhlig & Debian, the $200,000 woman who quit
Reprinted with permission from disguised.work
IRC Proceedings: Wednesday, April 24, 2024
IRC logs for Wednesday, April 24, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 24/04/2024: Layoffs and Shutdowns at Microsoft, Apple Sales in China Have Collapsed
Links for the day
Sexism processing travel reimbursement
Reprinted with permission from disguised.work
Girlfriends, Sex, Prostitution & Debian at DebConf22, Prizren, Kosovo
Reprinted with permission from disguised.work
Microsoft is Shutting Down Offices and Studios (Microsoft Layoffs Every Month This Year, Media Barely Mentions These)
Microsoft shutting down more offices (there have been layoffs every month this year)
Balkan women & Debian sexism, WeBoob leaks
Reprinted with permission from disguised.work
Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
Links 24/04/2024: Advances in TikTok Ban, Microsoft Lacks Security Incentives (It Profits From Breaches)
Links for the day
Gemini Links 24/04/2024: People Returning to Gemlogs, Stateless Workstations
Links for the day
Meike Reichle & Debian Dating
Reprinted with permission from disguised.work
Europe Won't be Safe From Russia Until the Last Windows PC is Turned Off (or Switched to BSDs and GNU/Linux)
Lives are at stake
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, April 23, 2024
IRC logs for Tuesday, April 23, 2024
[Meme] EPO: Breaking the Law as a Business Model
Total disregard for the EPO to sell more monopolies in Europe (to companies that are seldom European and in need of monopoly)
The EPO's Central Staff Committee (CSC) on New Ways of Working (NWoW) and “Bringing Teams Together” (BTT)
The latest publication from the Central Staff Committee (CSC)
Volunteers wanted: Unknown Suspects team
Reprinted with permission from Daniel Pocock
Debian trademark: where does the value come from?
Reprinted with permission from Daniel Pocock