Bonum Certa Men Certa

Berkheimer Changed Nothing and Invalidation Rates of Abstract Software Patents Remain Very High

Weight comparison



Summary: Contrary to repetitive misinformation from firms that 'sell' services around patents, there is no turnaround or comeback for software patents; the latest numbers suggest a marginal difference at best -- one that may be negligible considering the correlation between expected outcomes and actions (the nature of risk analysis)

THE QUALITY of patents at the USPTO (existing and newly-awarded ones) isn't great, but at least it seems like it's improving and the number of patent grants is declining (at long last).



"Sadly, some people who write on patent matters are willfully clueless..."The psyche or mentality surrounding patents ought to change. Not all patents represent innovation and some kinds of patents actively suppress innovation. It's not even a controversial premise as many scholars have shown just that, even empirically.

"Microsoft’s New Patent Will Let You Communicate With Others In 3D," said a headline from yesterday, but patents don't "let" anything. They restrict. Sadly, some people who write on patent matters are willfully clueless (this site is generally awful in its coverage on most topics because the writers don't specialise in the areas they cover; they do Microsoft 'ads' a lot of the time, under the banner of "FOSS")

"Apple Could Let You Store Your Passport on an iPhone," said another new headline, misusing that word "let" again. Patents are not about "letting" but about monopolising. Another new article about Apple patents talks about so-called 'Augmented Reality' (buzzword); it's a patent or at least an application that we wrote about over a weekend. It's abstract, sure, but with trendy terms like 'Augmented Reality' (or AR for short) will examiners see that? Andrew Rossow, in the meantime, found the "blockchain" hype; he uses it to advance his professional agenda, which he calls "Intellectual [sic] Property [sic] Rights [sic]" right there in the headline. It's outright ridiculous, but this is the kind of press coverage we find about patents. Some of it is composed by lawyers and the rest just repeats claims made by companies (without applying some critical thinking). A lot of it is just "buzzwords salad" -- a subject we tackled on Sunday and Monday in relation to software patents.

"For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents."What we really care about isn't what patent examiners say but what patent judges say; it's them (the latter) who have the final word, provided the accused can afford legal defense and a day (sometimes a year or more) in court.

For all we can tell, irrespective of the misguided Iancu, judges continue to reject software patents. They do so after Iancu's appointment as much as (or almost as much as) they did a year ago, i.e. before his name was even brought up. Christopher King (writing in Fenwick & West Blogs) has just published another one of these dishonest #ALICESTORM posts. Those are not objective at all. Do they even try to hide their bias?

Here's the key figure (among more):

The overall percentage of decisions invalidating patents under €§ 101 since we started tracking statistics in July 2014 has fallen slightly—from 67.5% to 66.0%—year over year.


The decline is very minor and there may be simple explanations for it. This may be noticeable (albeit barely) simply because fewer software patent 'owners' even bother anymore. They know they haven't much of a chance 'against' €§ 101, so only the 'stronger' patents wind up in court.

As for caselaw, virtually nothing has changed. Nowadays some law firms attempt to attribute the minor decline to Berkheimer. That now looks foolish, especially in light of detailed statistics. "Berkheimer Effect" (as some patent maximalists wanted to dub it) or 'pulling a Berkheimer' is useless. To quote: "Ironically, however, of the 25 decisions citing Berkheimer, 15 found invalidity, with only 10 finding validity, a higher invalidation rate than that of the recent cases not citing Berkheimer. Apparently courts primarily cite Berkheimer in order to acknowledge it before distinguishing it!"

"Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline."So bringing up Berkheimer -- one might semi-joke -- actually reduces the chance of a favourable (to the plaintiff) judgment. Isn't that hilarious? The numbers don't support the assertions made by lawyers over the past 6 months. The numbers themselves suggest so. And so they spin facts. Next time someone like Iancu brings up his Berkheimer 'memo' we'll surely point out that underlying facts aren't on his side (pun intended, given the nature of the Berkheimer decision). Iancu seems to be just another David Kappos and if he continues to defy courts/caselaw (or selectively applies law), US patents will simply lose their value, i.e. legal certainty associated with them will continue to decline. He cannot just abolish Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) either, not after SCOTUS defended IPRs in Oil States.

Recent Techrights' Posts

Two Risks to Companies: The Microsoft Culture and the Microsoft Tools
Novell was killed by a form of "social engineering" by Microsoft
It's Hard to Trust People Who Worked - Not Only Those Who Still Work - at Microsoft
Bryan Lunduke is just what people would call an "arsehole of a person"
Links 06/07/2025: Climate Change and "The Right to Criticise"
Links for the day
 
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 06, 2025
IRC logs for Sunday, July 06, 2025
Gemini Links 07/07/2025: BaseLibre Numerical System and TUI Rant
Links for the day
[Video] "Copyleft Isn't a Bug."
"Copyleft isn’t a bug. It’s a feature. GNU GPL forced the world to treat code like a public good."
Being in Social Control Media Means Exposing Oneself to Heckling
Richard Stallman does not (either himself or directly) post to any social control media
Links 06/07/2025: Airlines Perils, Scams, and Breaches
Links for the day
For the Second Time, Bryan Lunduke From Microsoft is Siccing Racist Trolls and Vandals at Me
You're only reinforcing the point we made yesterday
Links 06/07/2025: End to End Encryption at Risk, Reuters Twitter ("X") Account Withheld in India
Links for the day
Gemini Links 06/07/2025: Tinylog and Certification Rotation
Links for the day
PCLinuxOS Sites Coming Back, Gradually
let's just be patient
Social Control Media, Even If Based on Free Software, Still Has Many Problems
a distraction from what actually mattered and still matters
IBM is Not Your Master
IBM makes friends with people who exclude the majority of the population: women
Help Fund the Free Software Foundation (FSF)
If you have some dollars to spare, go support the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 05, 2025
IRC logs for Saturday, July 05, 2025
A Short History of Attacks on Techrights (and Boycott Novell Before That)
good opportunity to tell again the story of several (not all) attempts to silence us
The Mainstream Media Took 4 Days to Realise Microsoft Shut Down Its Operations in Pakistan and Fired Everybody
We estimate that Microsoft has had about 29,000 layoffs since January
Leadership in Free Software
Don't let IBM lead. It's a terrible flag bearer.
“Twibel” Actions Against Comedians (and Why It's a Truly Low Blow)
they try to make up in quantities for a lack of merit or quality
Linux Foundation Apparently Flirting With Slop (Marketing by LLM-Generated SPAM)
The Web is in a really bad state!
COVID-19 Sped Up Site Improvements in Techrights
A few months later we created our very own IRC network
Gemini Links 05/07/2025: Negative Questions and 'Touching Grass' (Going Outside)
Links for the day
Links 05/07/2025: Dalai Lama Succession as 90th Birthday Approaches, 40 deg C in China
Links for the day
Links 05/07/2025: Hungary and US Defecting to Russia, "Google's Hotseat Hypocrisy"
Links for the day
Gemini Links 05/07/2025: 4th of July 2025 and "Zig Roadmap 2026"
Links for the day
How to Combat the Exploitation and Abuse by Microsoft GitHub
Not to mention corruption and crimes against women
Bryan Lunduke is Actually Sending His Audience to Attack People
"[Lunduke] is actually sending his audience to attack people."
Even The Right Wing is Rejecting Bryan Lunduke
no wonder he became so irrelevant and marginal
Microsoft's MSN Helps Microsoft Spread Lies About the Layoffs' Scale (Well Over 25,000 People Laid Off This Year)
There seem to be monopolies on lies and on truth
The Death of X Has Been Greatly Exaggerated (by Compromised Media)
X.Org Server is alive and well
Rewriting Things in Rust
How far would you go?
In 2025 Everything is "AI". Remember Blockchains?
Talk about what companies and things (services, products, software) actually do, not the labels they use
Julian Assange Has Been Free for a Year
Julian Assange and I disagreed on some things
Monopolies and Scalping
Monopolies gravitate towards price hikes
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 04, 2025
IRC logs for Friday, July 04, 2025
Microsoft's August Layoffs Wave: "August is Confirmed for Additional Performance Based Cuts"
"August is confirmed for additional performance based cuts from the recent connects along with additional organizational cuts."
What Microsoft Reputation Laundering (With a Weaponised Law Degree) Looks Like in a Foreign Continent
You would expect this in uncivilised and primitive countries
Slopwatch: LLMs 'Write' Fake or Distorted 'News' About "Linux"
LLM slop disguised as news