Bonum Certa Men Certa

Deception on ۤ 101/Alice Continues, Courtesy of Firms That Are Making Money From Worthless (Bunk) Software Patents

Just projecting their personal agenda

35 U.S.C. 101 mirror



Summary: 35 U.S.C. ۤ 101 does not seem to matter to people whose living is made from litigation and patent pursuits on (or pertaining to) algorithms; we rebut a few examples from the past week, reminding readers that lawyers aren't credible advisors on issues they stand to gain from (at clients' and innocent companies' expense)

THE collapse of software patents is very much a reality in the US. Don't ask law firms; they just want to sell more 'services' (e.g. lawsuits and patent applications) around that.



The other day in Law.com there was an article with the term "Open Source" in the headline, which got our attention. Don't be misled though; Law.com is traditionally a Free/Open Source software-hostile site, typically helping lawyers sell services around licence compliance and other things which are marketed by FUD. “Patents and open source are not mutually exclusive,” someone (a self-appointed expert) is quoted as saying in this new piece.

"They're alluding to the corporate 'flavour' of "Open Source", not Free/Open Source software."Actually, they are. They're not compatible. Software patents and Free/Open Source software cannot co-exist. “You can do both and do both correctly," continues the self-appointed expert, "but it takes education, especially for people who are newer in the industry.”

They're alluding to the corporate 'flavour' of "Open Source", not Free/Open Source software. "Moore said engineers often join Pure Storage from companies that were not engaged in open source projects," the author writes, "and expect a similar policy. Others are pro-open source, but may not know the benefits of patents."

So they're trying to market software patents to companies which claim to be "Open Source", such as Red Hat (it's applying for software patents and really ought to stop doing that). "That’s one reason why Gideon Myles," continues the author, "lead IP counsel at San Francisco-based Dropbox Inc., said his company educates new employees on both processes."

"When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this."In other words, they're wasting employees' capacity and reducing their productivity because of silly patents.

Are these actually worth pursuing anymore? No.

But that's not what lawyers (with fanciers job titles like "IP counsel") want companies to believe, or else they'll lose their job if not the entire legal department.

When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this.

Sadly, as media in this domain remains dominated by law firms (or authors who extensively quote them), one may easily get the impression that software patents are still potent, even in the face of ۤ 101/Alice.

In a new guest post by "Benjamin C. Stasa, Shareholder, Brooks Kushman PC, Southfield, Michigan and David C. Berry, Director, Patent Procurement Clinic, Wayne State University Law School, Detroit, Michigan" (i.e. mostly the patent 'industry') they suggest workarounds to bypass ۤ 101. They're also trying to water down ۤ 101 or obliterate it by any means possible/available.

From the outline:

We offer an alternative approach for amending ۤ 101 to allow some range of patentability for inventions directed to judicially-recognized eligibility exceptions. Rather than attempting to redefine the line between eligible and ineligible subject matter (a revision that preserves the current all-or-nothing approach), we propose amending ۤ101 to implement disclosure-based limits on the scope of claims directed to judicially-recognized exceptions (abstract ideas, laws of nature, and natural phenomena).


It's the same old tricks; IBM and IPO lobby along those lines, as we shall show later today. They say they want to "amend" ۤ 101, but what they mean to say is "weaken". ۤ 101 is based on several judgments from the Supreme Court, yet these people think that some blog post of theirs, based on their financial agenda, has relevance to ۤ 101?

"There's no quantitative/numerical data to support an assertion like "comeback" for software patents."ۤ 101 is already very clear, but Iancu (who is acting like a 'mole' of the patent microcosm, at least thus far in his term, serving or speaking for the litigation 'industry' he came from) does't like it and wants it thwarted in defiance of the Supreme Court. Here's a new tweet about it: "#BIO2018 IP track kicked off with opening remarks from Andrei Iancu of the @uspto. Clarifying #section101 and changing the dialogue to focus on brilliance of #inventors high on agenda."

Well, the Biotechnology Innovation Organization (BIO) is an anti-PTAB lobbying body and for Andrei Iancu to even attend this event says a lot about his interests. Also on the subject of ۤ 101, Mondaq republished a piece from Charlene Lipchen (Field LLP). She is misleading people if she seriously thinks that there's a software patents rebound in the US (there's none), calling it a "Glimmer Of Hope" and stating the following upfront: "It remains a general rule, in patent law, that one cannot obtain a patent for an abstract idea. Over the years, patent claims for methods implemented by computers and software have been struck down by the courts, on the basis that merely using a general-purpose computer to implement an abstract idea does not make the abstract idea patentable. More recently, since the Supreme Court of the United States' 2014 decision in Alice Corp. v. CLS Bank, a software patent case providing a revised test for determining what is patentable subject matter, most patents containing claims to software challenged in US courts have been struck down. The patent claims at issue in Alice were directed to a method for implementing an intermediated settlement between parties."

"A fortnight ago we began seeing pure spin by patent extremists, claiming that ۤ 101 would see the US Congress/Senate involved, but that was something that people nowadays call "fake news"."That's that same optimism we've just responded to. There's no quantitative/numerical data to support an assertion like "comeback" for software patents. And Iancu cannot change that either; he's not a judge. Law is outside his scope of authority.

A fortnight ago we began seeing pure spin by patent extremists, claiming that ۤ 101 would see the US Congress/Senate involved, but that was something that people nowadays call "fake news".

A new article by Matthew Bultman (with his usual patent maximalist slant, which we took note of before [1, 2, 3, 4]) speaks of a "High Court" being "begged", but no such thing happened. A high court wasn't mentioned at all. This is more of that pure spin, a 180 degrees spin in Law 360. To quote:

The Cleveland Clinic Foundation on Friday seized on a Federal Circuit judge's recent call for a “higher authority” to clarify what is eligible for a patent, telling the U.S. Supreme Court a current state of confusion begs for intervention.

The clinic, which is fighting a decision that invalidated three patents on cardiovascular disease tests, highlighted comments Circuit Judge Alan Lourie made last week when the appeals court denied separate rehearing requests from HP Inc. and Green Shades Software Inc.


The term “higher authority” does not imply "High Court" like Bultman's headline insinuates. In fact, there's no evidence at all that anyone at all is going to revisit these cases. €§ 101 remains in tact.

As is widely known, ۤ 101/Alice isn't taken as seriously by the lower courts. Yes, at the lower courts (District Courts) as opposed to the Federal Circuit (CAFC), ۤ 101 is more likely to be swept aside, as was the case in Hybrid Audio, LLC v Visual Land, Inc.

Joseph Herndon, writing about a trial in a California District Court, managed to find one of those 35 U.S.C. ۤ 101 cases in which judges dismissed the defendant's argument:

In the U.S. District Court for the Central District of California, Hybrid Audio, LLC sued Visual Land, Inc. for patent infringement with respect to audio signal processing technology used in conjunction with MP3 technologies. Defendant filed a motion to dismiss, alleging that the patent was invalid under 35 U.S.C. ۤ 101. Despite seemingly very broad claims, the Court found that it was clear from the asserted patent that the claims were directed to an improvement in the functioning of a computer, and thus, were patent eligible.

The patent at issue is entitled "Signal Processing Utilizing a Tree-Structured Array," which originally issued as U.S. Patent No. 6,252,909 on June 26, 2001. After a reissue application was filed for the '909 Patent, the '909 Patent reissued with certificate number RE40,281, and subsequently, a request for reexamination of the '281 Patent was filed, and the PTO issued a reexamination certificate for the '281 Patent confirming patentability of the reexamined claims.

[...]

Thus, despite broad claims that recite only functional aspects, and no physical components or elements that perform the functions, the claims were found to be patent eligible because the patent disclosure clearly set forth how the claimed processes improved computer functionality as compared to prior art. This enable the plaintiff to show that the claims were necessarily rooted in computer technology, solved a technical problem with a technical solution, and improved upon prior computer technology—all factors weighing in favor of patent eligibility.


If this gets appealed (to CAFC), this patent will likely be invalidated as per/in lieu with ۤ 101 (as usual).

Have we come to the point where it's so hard for patent lawyers to find CAFC rulings in favour of software patents? Are they now looking for supportive cases at lower courts?

Recent Techrights' Posts

Girlfriends, Sex, Prostitution & Debian at DebConf22, Prizren, Kosovo
Reprinted with permission from disguised.work
Martina Ferrari & Debian, DebConf room list: who sleeps with who?
Reprinted with permission from Daniel Pocock
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
Links 23/04/2024: US Doubles Down on Patent Obviousness, North Korea Practices Nuclear Conflict
Links for the day
Stardust Nightclub Tragedy, Unlawful killing, Censorship & Debian Scapegoating
Reprinted with permission from Daniel Pocock
 
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
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
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
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
Detecting suspicious transactions in the Wikimedia grants process
Reprinted with permission from Daniel Pocock
Gunnar Wolf & Debian Modern Slavery punishments
Reprinted with permission from Daniel Pocock
On DebConf and Debian 'Bedroom Nepotism' (Connected to Canonical, Red Hat, and Google)
Why the public must know suppressed facts (which women themselves are voicing concerns about; some men muzzle them to save face)
Several Years After Vista 11 Came Out Few People in Africa Use It, Its Relative Share Declines (People Delete It and Move to BSD/GNU/Linux?)
These trends are worth discussing
Canonical, Ubuntu & Debian DebConf19 Diversity Girls email
Reprinted with permission from disguised.work
Links 23/04/2024: Escalations Around Poland, Microsoft Shares Dumped
Links for the day
Gemini Links 23/04/2024: Offline PSP Media Player and OpenBSD on ThinkPad
Links for the day
Amaya Rodrigo Sastre, Holger Levsen & Debian DebConf6 fight
Reprinted with permission from disguised.work
DebConf8: who slept with who? Rooming list leaked
Reprinted with permission from disguised.work
Bruce Perens & Debian: swiping the Open Source trademark
Reprinted with permission from disguised.work
Ean Schuessler & Debian SPI OSI trademark disputes
Reprinted with permission from disguised.work
Windows in Sudan: From 99.15% to 2.12%
With conflict in Sudan, plus the occasional escalation/s, buying a laptop with Vista 11 isn't a high priority
Anatomy of a Cancel Mob Campaign
how they go about
[Meme] The 'Cancel Culture' and Its 'Hit List'
organisers are being contacted by the 'cancel mob'
Richard Stallman's Next Public Talk is on Friday, 17:30 in Córdoba (Spain), FSF Cannot Mention It
Any attempt to marginalise founders isn't unprecedented as a strategy
IRC Proceedings: Monday, April 22, 2024
IRC logs for Monday, April 22, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Don't trust me. Trust the voters.
Reprinted with permission from Daniel Pocock
Chris Lamb & Debian demanded Ubuntu censor my blog
Reprinted with permission from disguised.work
Ean Schuessler, Branden Robinson & Debian SPI accounting crisis
Reprinted with permission from disguised.work
William Lee Irwin III, Michael Schultheiss & Debian, Oracle, Russian kernel scandal
Reprinted with permission from disguised.work
Microsoft's Windows Down to 8% in Afghanistan According to statCounter Data
in Vietnam Windows is at 8%, in Iraq 4.9%, Syria 3.7%, and Yemen 2.2%
[Meme] Only Criminals Would Want to Use Printers?
The EPO's war on paper
EPO: We and Microsoft Will Spy on Everything (No Physical Copies)
The letter is dated last Thursday
Links 22/04/2024: Windows Getting Worse, Oligarch-Owned Media Attacking Assange Again
Links for the day
Links 21/04/2024: LINUX Unplugged and 'Screen Time' as the New Tobacco
Links for the day
Gemini Links 22/04/2024: Health Issues and Online Documentation
Links for the day
What Fake News or Botspew From Microsoft Looks Like... (Also: Techrights to Invest 500 Billion in Datacentres by 2050!)
Sededin Dedovic (if that's a real name) does Microsoft stenography
Stefano Maffulli's (and Microsoft's) Openwashing Slant Initiative (OSI) Report Was Finalised a Few Months Ago, Revealing Only 3% of the Money Comes From Members/People
Microsoft's role remains prominent (for OSI to help the attack on the GPL and constantly engage in promotion of proprietary GitHub)
[Meme] Master Engineer, But Only They Can Say It
One can conclude that "inclusive language" is a community-hostile trolling campaign
[Meme] It Takes Three to Grant a Monopoly, Or... Injunction Against Staff Representatives
Quality control
[Video] EPO's "Heart of Staff Rep" Has a Heartless New Rant
The wordplay is just for fun
An Unfortunate Miscalculation Of Capital
Reprinted with permission from Andy Farnell
[Video] Online Brigade Demands That the Person Who Started GNU/Linux is Denied Public Speaking (and Why FSF Cannot Mention His Speeches)
So basically the attack on RMS did not stop; even when he's ill with cancer the cancel culture will try to cancel him, preventing him from talking (or be heard) about what he started in 1983
Online Brigade Demands That the Person Who Made Nix Leaves Nix for Not Censoring People 'Enough'
Trying to 'nix' the founder over alleged "safety" of so-called 'minorities'
[Video] Inauthentic Sites and Our Upcoming Publications
In the future, at least in the short term, we'll continue to highlight Debian issues
List of Debian Suicides & Accidents
Reprinted with permission from disguised.work
Jens Schmalzing & Debian: rooftop fall, inaccurately described as accident
Reprinted with permission from disguised.work
[Teaser] EPO Leaks About EPO Leaks
Yo dawg!
On Wednesday IBM Announces 'Results' (Partial; Bad Parts Offloaded Later) and Red Hat Has Layoffs Anniversary
There's still expectation that Red Hat will make more staff cuts
IBM: We Are No Longer Pro-Nazi (Not Anymore)
Historically, IBM has had a nazi problem
Bad faith: attacking a volunteer at a time of grief, disrespect for the sanctity of human life
Reprinted with permission from Daniel Pocock
Bad faith: how many Debian Developers really committed suicide?
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, April 21, 2024
IRC logs for Sunday, April 21, 2024
A History of Frivolous Filings and Heavy Drug Use
So the militant was psychotic due to copious amounts of marijuana
Bad faith: suicide, stigma and tarnishing
Reprinted with permission from Daniel Pocock
UDRP Legitimate interests: EU whistleblower directive, workplace health & safety concerns
Reprinted with permission from Daniel Pocock