02.19.18

Gemini version available ♊︎

The Patent ‘Industry’ Likes to Mention Berkheimer and Aatrix to Give the Mere Impression of Section 101/Alice Weakness

Posted in America, Courtroom, Patents at 1:59 am by Dr. Roy Schestowitz

Summary: Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way

ALL SORTS of USPTO-granted software patents are facing extinction. We’ll soon write about PTAB, giving some examples of invalidations, but one need not look as far as PTAB.

Michael SteinMichael Stein, an IP Counsel from Seattle (makes one wonder if a former Microsoft executive or something else; his page does not disclose clients or past employers), isn’t too happy about the status quo. Days ago he wrote: “It’s a logic flaw in assessing patent eligibility. Take a computer readable medium, such as a hard disk. Claim the CRM and it would rightly be rejected for lack of novelty but not under 101. Add instructions for a SW process, it becomes ineligible under 101. Doesn’t make sense.”

“The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted.”The computer is irrelevant to it. Algorithms are algorithms and they’re abstract. The above clearly misframes what Section 101/Alice is about (by lumping that together with hardware). In the meantime, there’s also similar spin from other law firms. As we last noted yesterday, they habitually distort and misframe Berkheimer, making it about Section 101/Alice even though that’s now quite the case. Yesterday we also wrote about Aatrix, a newer case which is already being distorted similarly. The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted.

A few days ago Bejin Bieneman wrote:

Considering the patent-eligibility of claims directed to archiving digital assets, the Federal Circuit has affirmed a district court decision invalidating an independent claim under 35 USC § 101 and Alice, while vacating and remanding a judgment that certain dependent claims were patent-ineligible. Berkheimer v. HP, Inc., No. 2017-1437 (Fed. Cir. Feb 8, 2017) (precedential) (opinion by Judge Moore, joined by Judges Taranto and Stoll). Along the way, the court chastised the District Court for using independent claim 1 of US Patent No. 7,447,713 as representative, while ignoring the patent owner’s separate arguments concerning dependent claims 4-7.

They are partly correct in pointing out what many patent zealots intentionally omit; the Federal Circuit did not repudiate Section 101/Alice at all; au contraire. But some quote miners cherry-picked quotes from that long (almost 20 pages) decision to suit the bogus narrative of PTAB disregarding facts.

“How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal “ammo”?”Berkheimer was also mentioned yesterday by Watchtroll. The title was “Is there a Light at the End of the Alice Tunnel?” as if it’s darkness to have Alice. It’s another one of those Watchtroll rants about Alice (second from this author in the past week alone) and it starts by stating: “The Federal Circuit explains in Berkheimer and Aatrix that the Federal Rules of Civil Procedure apply to patent eligibility.”

Obviously. But what does not follow is the remainder of this dross about Alice being controversial, unclear, or whatever.

As we said yesterday, it’s reasonable to predict that in weeks if not months to come lawyers will just name-drop Berkheimer and Aatrix in an effort to vacate perfectly legitimate decisions. What both cases showed wasn’t an issue with Alice, which they didn’t even challenge or refute. How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal “ammo”?

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. Daniel Stenberg Knows Almost Nothing About Gemini and He's Likely Just Protecting His Turf (HTTP/S)

    The man behind Curl, Daniel Stenberg, criticises Gemini; but it's not clear if he even bothered trying it (except very briefly) or just read some inaccurate, one-sided blurbs about it



  2. Links 29/05/2023: Videos Catchup and Gemini FUD

    Links for the day



  3. Links 28/05/2023: Linux 6.4 RC4 and MX Linux 23 Beta

    Links for the day



  4. Gemini Links 28/05/2023: Itanium Day, GNUnet DHT, and More

    Links for the day



  5. Links 28/05/2023: eGates System Collapses, More High TCO Stories (Microsoft Windows)

    Links for the day



  6. IRC Proceedings: Saturday, May 27, 2023

    IRC logs for Saturday, May 27, 2023



  7. No More Twitter, Mastodon, and Diaspora for Tux Machines (Goodbye to Social Control Media)

    People would benefit from mass abandonment of such pseudo-social pseudo-media.



  8. Links 28/05/2023: New Wine and More

    Links for the day



  9. Links 27/05/2023: Plans Made for GNU's 40th Anniversary

    Links for the day



  10. Social Control Media Needs to be Purged and We Need to Convince Others to Quit It Too (to Protect Ourselves as Individuals and as a Society)

    With the Tux Machines anniversary (19 years) just days away we seriously consider abandoning all social control media accounts of that site, including Mastodon and Diaspora; social control networks do far more harm than good and they’ve gotten a lot worse over time



  11. Anonymously Travelling: Still Feasible?

    The short story is that in the UK it's still possible to travel anonymously by bus, tram, and train (even with shades, hat and mask/s on), but how long for? Or how much longer have we got before this too gets banned under the false guise of "protecting us" (or "smart"/"modern")?



  12. With EUIPO in Focus, and Even an EU Kangaroo Tribunal, EPO Corruption (and Cross-Pollination With This EU Agency) Becomes a Major Liability/Risk to the EU

    With the UPC days away (an illegal and unconstitutional kangaroo court system, tied to the European Union in spite of critical deficiencies) it’s curious to see EPO scandals of corruption spilling over to the European Union already



  13. European Patent Office (EPO) Management Not Supported by the EPO's Applicants, So Why Is It Still There?

    This third translation in the batch is an article similar to the prior one, but the text is a bit different (“Patente ohne Wert”)



  14. EPO Applicants Complain That Patent Quality Sank and EPO Management Isn't Listening (Nor Caring)

    SUEPO has just released 3 translations of new articles in German (here is the first of the batch); the following is the second of the three (“Kritik am Europäischen Patentamt – Patente ohne Wert?”)



  15. German Media About Industry Patent Quality Charter (IPQC) and the European Patent Office (EPO)

    SUEPO has just released 3 translations of new articles in German; this is the first of the three (“Industrie kritisiert Europäisches Patentamt”)



  16. Geminispace Continues to Grow Even If (or When) Stéphane Bortzmeyer Stops Measuring Its Growth

    A Gemini crawler called Lupa (Free/libre software) has been used for years by Stéphane Bortzmeyer to study Gemini and report on how the community was evolving, especially from a technical perspective; but his own instance of Lupa has produced no up-to-date results for several weeks



  17. Links 27/05/2023: Goodbyes to Tina Turner

    Links for the day



  18. HMRC: You Can Click and Type to Report Crime, But No Feedback or Reference Number Given

    The crimes of Sirius ‘Open Source’ were reported 7 days ago to HMRC (equivalent to the IRS in the US, more or less); but there has been no visible progress and no tracking reference is given to identify the report



  19. IRC Proceedings: Friday, May 26, 2023

    IRC logs for Friday, May 26, 2023



  20. One Week After Sirius Open Source Was Reported to HM Revenue and Customs (HMRC) for Tax Fraud: No Response, No Action, Nothing...

    One week ago we reported tax abuses of Sirius ‘Open Source’ to HMRC; we still wait for any actual signs that HMRC is doing anything at all about the matter (Sirius has British government clients, so maybe they’d rather not look into that, in which case HMRC might be reported to the Ombudsman for malpractice)



  21. Links 26/05/2023: Weston 12.0 Highlights and US Debt Limit Panic

    Links for the day



  22. Gemini Links 26/05/2023: New People in Gemini

    Links for the day



  23. IRC Proceedings: Thursday, May 25, 2023

    IRC logs for Thursday, May 25, 2023



  24. Links 26/05/2023: Qt 6.5.1 and Subsystems in GNUnet

    Links for the day



  25. Links 25/05/2023: Mesa 23.1.1 and Debian Reunion

    Links for the day



  26. Links 25/05/2023: IBM as Leading Wayland Pusher

    Links for the day



  27. IRC Proceedings: Wednesday, May 24, 2023

    IRC logs for Wednesday, May 24, 2023



  28. Links 25/05/2023: Istio 1.16.5 and Curl 8.1.1

    Links for the day



  29. Gemini Links 25/05/2023: On Profit and Desire for Gemini

    Links for the day



  30. SiliconANGLE: Sponsored by Microsoft and Red Hat to Conduct the Marriage Ceremony

    SiliconANGLE insists that paying SiliconANGLE money for coverage does not lead to bias, but every sane person who keeps abreast of SiliconANGLE — and I read their entire feed every day — knows that it’s a ludicrous lie (Red Hat/IBM and the Linux Foundation also buy puff pieces and “event coverage” from SiliconANGLE, so it’s marketing disguised as “journalism”


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