Bonum Certa Men Certa

Patent Extremists Are Unable to Find Federal Circuit Cases That Help Them Mislead on Alice

Freedom to develop software (code) with lower risk of patent litigation in the US

Dolphin



Summary: Patent extremists prefer talking about Mayo but not Alice when it comes to 35 U.S.C. €§ 101; Broadcom is meanwhile going on a 'fishing expedition', looking to profit from patents by calling for embargo through the ITC

IN RECENT years the US Supreme Court (SCOTUS) guided the USPTO into a harder approach towards software patents; if there's nothing "hard" (as in non-abstract), then a patent isn't suitable 'protection', maybe copyrights at best. This has always made perfect sense to actual software developers, but policy was perturbed by lawyers for their selfish interests.



"This has always made perfect sense to actual software developers, but policy was perturbed by lawyers for their selfish interests."The Federal Circuit has taken SCOTUS decisions such as Mayo and Alice into account; so did the Patent Trial and Appeal Board (PTAB), which is basically a lot more efficient and is technically part of the Office.

"This case had nothing to do with software."At the start of the year there were a few Federal Circuit outcomes (decisions) which patent maximalists were able to spin in order to market software patents; but nothing of that kind has happened for months. Watchtroll, failing to cherry-pick any 'convenient' cases, would rather speak of Vanda Pharmaceuticals -- a case that we've mentioned here before (albeit not much because it's really about Mayo, not Alice). John M. Rogitz (Rogitz & Associates) wrote about this USPTO "memo [which] dives into the Federal Circuit’s holding, noting that “[t]he Federal Circuit distinguished Mayo, stating: ‘The inventors recognized the relationships between iloperidone, CYP2D6 metabolism, and QTc prolongation, but that is not what they claimed. They claimed an application of that relationship. Unlike the claim at issue in Mayo, the claims here require a treating doctor to administer iloperidone.’…As a result, the Federal Circuit held the claims in Vanda patent eligible under the first step of the Alice/Mayo framework…because the claims ‘are directed to a method of using iloperidone to treat schizophrenia,’ rather than being ‘directed to’ a judicial exception.”"

This case had nothing to do with software. The following day Theodore Chiacchio (also in Watchtroll) persisted with Mayo:

This article examines Supreme Court and Federal Circuit analyses of patent eligibility under 35 U.S.C. €§ 101 where the patent claims at issue were directed to Life Sciences-related technologies. I first examine this topic in the context of composition of matter patent claims and then in the context of method claims. As reflected in the below discussion, while the €§ 101 case law is fairly straightforward with respect to composition claims, the case law is murkier when it comes to method claims.


Suffice to say, this has nothing to do with software or even computing. We're watching that domain closely and there's no rebound there of any kind; software patents are pretty much dead.

"We're watching that domain closely and there's no rebound there of any kind; software patents are pretty much dead."Patent Docs too has meanwhile cherry-picked just one case (so far this week): Akeso Health Sciences, LLC v Designs for Health, Inc.

This one does not even related to €§ 101 but to €§ 286. "Patentee Equitably Estopped from Asserting Patent Due to 10-Year Delay in Filing Suit," their outline says. Here are some portions:

Earlier this year, in Akeso Health Sciences, LLC v. Designs for Health, Inc., District Judge S. James Otero of the U.S. District Court for the Central District of California granted a motion for summary judgment filed by Defendant Designs for Health, Inc. ("DFH"), in which DFH argued, inter alia, that Plaintiff Akeso Health Sciences, LLC should be equitably estopped from asserting U.S. Patent No. 6,500,450 due to Akeso's ten-year delay in filing suit. Akeso had filed suit against DFH for infringement of the '450 patent, which relates to a dietary supplement for the treatment of migraine headache, asserting that DFH's manufacture and sale of the migraine treatment product Migranol indirectly infringed the asserted claims due to various instructions and implications on the label.

[...]

The Court indicated that its finding was further bolstered by 35 U.S.C. €§ 286, which precludes a patentee from recovering for any infringement committed more than six years prior to the filing of the complaint. In particular, the Court explained that "the patentee's failure to preserve over four years' worth of potential lost profits is reasonably interpreted as an abandonment of its claims." With respect to the first element of equitable estoppel, the Court therefore found that "the patentee, through misleading conduct (or silence), [led] the alleged infringer to reasonably infer that the patentee [did] not intend to enforce its patent against the alleged infringer," quoting Radio Sys. Corp. v. Lalor, 709 F.3d at 1130.


We don't typically write about the absence of something, but it's certainly noteworthy that these patent maximalists fail to find anything 'positive' (to them) to report about Alice. No news is good news in that regard...

"Any time there's a lawsuit or a call for embargo they pounce at the opportunity to promote it. They don't care about technology, only legal bills."Then there's Broadcom's ITC complaint that we covered last week (after Reuters had covered it). We covered ITC issues a week earlier and Broadcom's flirtation with this strategy early last month, not too long after Qualcomm merger/takeover attempts (stopped some months ago and it looks like NXP will be the one to get devoured). Watchtroll's take on this is pretty revealing. Any time there's a lawsuit or a call for embargo they pounce at the opportunity to promote it. They don't care about technology, only legal bills.

Recent Techrights' Posts

Reboots Should Never be Necessary
"BUT WHAT ABOUT SECURITY!!"
There's Still Hope for the World Wide Web
Let's hope that the trajectory of the Web won't be leading us to over-reliance on Google, nor will it reward worthless slopfarms
Gemini Links 15/07/2025: Smolweb and Alhena 5.1.7
Links for the day
XBox is Rapidly Turned Into a Slopfarm by Microsoft
Slop isn't about efficiency and saving money
Microsoft's Halloween Documents and systemd, Wayland, Etc.
Maybe one day Wayland will be widespread. Or maybe not.
 
Links 15/07/2025: LLM Pollution and Pushback in Ukraine
Links for the day
Gemini Links 15/07/2025: xkcd, New Cert, and Alhena Gemlog
Links for the day
Links 15/07/2025: Press Freedom at Risk and New Facebook Blunders
Links for the day
The Danes Want GNU/Linux
David Heinemeier Hansson recently moved to GNU/Linux
Cory Doctorow Explains Why Software Freedom Matters, Whereas "Open Source" Misses the Point and Helps Monopolies
It's a very long article
BillPR (EpsteinGate-Bribed NPR) is Turning Into a Partial Slopfarm that Promotes Slop
"I went on a date with a chatbot!"
Two Weeks Passed Since Latest Large Wave of Microsoft Layoffs, More Expected Next Month
Blaming the debt on "AI" is just self-serving storytelling
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 14, 2025
IRC logs for Monday, July 14, 2025
Gemini Links 15/07/2025: Gemini "Style Sheets" and Switching From Microsoft GitHub to Codeberg
Links for the day
Coming Soon: Another OSI Scandal, This One Implicating Molly de Blanc
OSI has been fairly quiet lately
Outreachy & Debian pregnancy cluster, Meike Reichle evidence
Reprinted with permission from Daniel Pocock
Again, "Lunduke is Actually Sending His Audience to Attack People"
Microsoft Lunduke is not trying to "protect" Linux
One of the Most Hilarious Things About the Microsoft SLAPPs
It's so ridiculous
Financial Support for the Free Software Foundation or the GNU Project
The FSF has extended until Friday its fund-raising campaign
Illegally Hiding (or Demanding Secrecy Around) Illegal Requests or Attempts at Extortion
unlawful communications like threats
Gemini Links 14/07/2025: BOFH Archive, Updating Old Palm PDAS, and Nginx vs Slop Bots
Links for the day
Ubuntu is Becoming GAFAM-Like
What does that say about Canonical and Ubuntu?
Slopfarms Which Take Real Articles About GNU/Linux and Turn Them Into Copycats Which Are False
Even before the LLM hype those were quite common
The Firm That Picks on Techrights is Accustomed to Working With Criminals
Techrights never did anything illegal. So why is it being picked on by people who work with criminals?
Microsoft Said the Mass Layoffs Were for "Investment" in "AI", But It's Also Laying Off the "AI" and "Copilot" Staff
Months ago we showed many so-called "AI" people were getting the boot and this time it's the same
DryDeadFish is Dead, Long Live DryDeadFish
We kept checking, hoping it can recover from some temporary technical issue
For Quite Some Time Already Microsoft Attracts Crackpots, Scams, and More
Occasionally we talk about the situation at IBM as there are many parallels
Links 14/07/2025: Chatbots Broken Again, McHire LLM Shows Limits of the Hype
Links for the day
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025