Bonum Certa Men Certa

Proskauer Rose LLP is Cherry-Picking Cases to Make Software Patents Seem Eligible Despite Alice v. CLS Bank

Agenda disguised as professional advice

Cherries



Summary: Naming and shaming those who are trying to reshape the consensus despite a rather consistent pattern of software patents being rejected

THE subject of software patents profoundly affects Free software, which is still under attack from software patents. The recent collapse of many software patents (not all) has been catalogued here for quite some time [1, 2, 3, 4, 5] and we continue to see more confirmatory evidence of this trend. The media which is run by or is at least influenced by patent practitioners does not like to cover this subject and it's truly a shame that activists against software patents have gone so quiet in recent years. The patent lawyers' press selects (or cherry-picks) cases that are exceptional and help reinforce software patents, even this month, leaving the public with the false impression that nothing has really changed after the Alice case. We oughtn't let this case go to waste.



"That's cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court."Earlier this month we found some of the latest revisionism from lawyers. Proskauer Rose LLP pushed it by apparently paying (as a press release) for coverage, injecting a pro-software patents piece into lots of lawyers' sites [1, 2, 3], including The National Law Review, which also went with the typical headline: "Job Applicant Software Patents Not Terminated for Invalidity". These are the publications that a lot of patent lawyers follow and the intent of Proskauer Rose LLP is probably to give them tips on how to game the system (which is basically what they all do, trying to bypass rules using common tricks). Here is a quote from the analysis: "Although the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank, one Massachusetts court recently declined to invalidate a trio of patents directed to job applicant software. Plaintiff Kenexa had asserted infringement claims against three defendants, and two of the defendants—including HireAbility—subsequently moved for judgment on the pleadings that Kenexa’s patents recite unpatentable subject matter under €§ 101."

So, they do acknowledge that "the subject matter eligibility of software patents has come under increased scrutiny since the Supreme Court issued its opinion last year in Alice Corp. v. CLS Bank," but then they go on to just covering one exceptional case where software patents managed to survive in court. That's cherry-picking, but then again, that is what lawyers do, even when they cite precedence in court. It's subjective by design. That's just their job. The clients, and hence the lawyers, have an agenda to push. This is the transaction, but clients deserve an honest, objective advice. It's not journalism but more like advocacy (what the UK calls "barristers" are literally advocates). Just watch Mr. Quinn trying to sell his 'services' while advertising for the Patent Trial and Appeal Board (PTAB). These people openly promote as broad a patent scope as possible (inclusive of software patents) for the same reasons arms and surveillance contractors want war and instability. The more problems the world has, the more business these people receive and the more money they make. It's the broken windows theory.

Recent Techrights' Posts

"Open" "AI" is Going Bankrupt, Appealing for Government Bailout
The writings have been on the wall for years
"Secure Boot": Stop Trying to Boot Into GNU/Linux, Use Vista 11 Instead
It's all about reducing the user's cybersecurity under the false guise of improving it
LowEndBox Resorts to Ableism to Smear Software Freedom
Not some "low-level" pundit but an administrator
This Coming Thursday EPO Staff Meets Online to Discuss the Salaries Going Down While Stoned Managers Increase Their Own
compensation going down relative to inflation and other factors
Misinformation of IBM Spread via LLM Slop
Since a lot of sites now rely on LLMs we can expect the corporations' lies to be perpetuated by bots. That includes the myths of IBM Red Hat.
Our Site Search Increases Our Editorial and Informational Independence
Implementing our search facility is a long-term investment
 
Rocky Linux's Embrace of Mindless Cargo Cults Will Harm Rocky Linux in the Long Run
focus on technology, not marketing that defrauds many people and plagiarises many producers
Many of Red Hat's Official Blog Posts Seem to be Fake, Written at Least Partly by Bots (LLM Slop)
Can one trust Red Hat on technical things if it cannot even write words?
Suggestions Regarding Techrights Search
In some cases, Daily Links also serve to obscure our original articles
Reaffirming Rumours of More Microsoft Layoffs, Halo Impacted, XBox Business Winding Down
XBox has a huge target painted on its bum
This is What We Always Wanted to Spend Our Time on
2026 will probably be our most productive ever
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, November 08, 2025
IRC logs for Saturday, November 08, 2025
IBM is Destroying Red Hat (by Extension, It Also Harms GNU/Linux)
IBM is where things come to die, more so in the past decade or so
Austrian Media Coverage of Luis Berenguer's (Top EPO Official) Getting Busted for Cocaine
This wasn't some rich tourist caught by cops, it was a local official whom they busted
Gemini Links 09/11/2025: File Managers and DPC Commissioner
Links for the day
Links 08/11/2025: Climate Talk Unfruitful, OldVersion.com Archive Facing Shutdown
Links for the day
IBM is Eliminating Red Hat Like It Eliminated Tivoli and Eliminated Cognos
Be wary of IBM
Quitting One's Job Isn't Forbidden, Right?
it's important to remind people that leaving one's job is perfectly OK
Being Absent/Missing From Social Control Media is Not a Sign of Weakness
Broadly speaking, social control media is for losers
Empathy Online
I recently learned from someone that running his Web site might hurt some feelings, even if the writings are truthful
Advocates of GNU/Linux and the Uphill Battles Behind Us
GNU/Linux felt like "activism" 20 years ago. Now it's mainstream.
Cybersecurity Means Real Security, Not Back Doors
Standing our ground on technology and cybersecurity is an uncompromisable stance
Links 08/11/2025: Disinformation Crisis, Denmark Recognises Threats Associated With Social Control Media
Links for the day
The Free Software Foundation (FSF) is Besieged for the Times It Does the Right Things
As that upsets rich people's interests (and they were, at times, sponsors)
Links 08/11/2025: Technical and Financial GAFAM Woes and Arrests of Journalists by Despots
Links for the day
Like SUSE, IBM Red Hat Seems to be Using LLM Slop to Write Fake (Bot-Generated) Blog Posts
IBM Red Hat keeps promoting slop
Corruption is a Reality, It's Not a Dirty or a Strong Word
Corruption is a topic some newspapers shy away from
How German Media Covered Cocainegate at The European Patent Office (EPO)
At some point we'll ask that same press to revisit the issue and this time comment on the EPO connection
Our Launch of Techrights Search Has Been Successful (So Far)
There are about 50,000 articles indexed there, going 19+ years back
Daniel Pocock Explains Social Engineering in Debian and Other Communities Increasingly Controlled by "Barons"
Communities are not corporations
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, November 07, 2025
IRC logs for Friday, November 07, 2025
Rosanna Yuen & GNOME community triple tricked
Reprinted with permission from Daniel Pocock
Adrian & Diana von Bidder-Senn, Debian: detailed history of a death
Reprinted with permission from Daniel Pocock
Crypto AG tricked ETH Zurich student internship
Reprinted with permission from Daniel Pocock
An Old Story of Fraud at the EPO in the Netherlands (and How the Dutch Government Facilitated It)
We've already mentioned several other scandals where the the Dutch government engaged in fraud and passive corruption
Voicing Concerns About European Patent Office (EPO) in Rijswijk
The report is dated yesterday
Gemini Links 08/11/2025: KeePassRX and Pluribus
Links for the day
IBM Layoffs Not Done, Terminations of Staff in India, Brazil, and Mexico Reported
This hopefully answers questions such as, "do the layoffs only impact US and Canada?"
Slopwatch: Brian Fagioli Targets "Linux" With LLMs, Google News Helps Blame "Linux" for Amazon WorkSpaces Flaws
Tonight's slopfest
Gemini Links 07/11/2025: Switzerland, k3s, and Privacy
Links for the day
Links 07/11/2025: Software Patents Squashed, Stock Markets Wobble Over Slop Uncertainties
Links for the day
A 19th Anniversary and High-Impact Exclusives
The end of 2025 will be very difficult for EPO management
The Register MS, Payroll First
GNU/Linux is a growing platform
Links 07/11/2025: US Government Shutdown Imperils Critical Functions, Slop in "AI" Clothing Debunked Some More, Bubble's Implosion Ongoing/Imminent According to Experts
Links for the day
Gemini Links 07/11/2025: No Goodbyes, Homelab, Mouse Keys / Pointer Keys
Links for the day
12 Years for Justice is Far Too Slow (and More People, Especially Women, Are Hurt)
Why do police departments and legal systems fail to protect women?
Before Freenode Collapsed Its Staff (the People Who Now Run Libera.Chat) Were Censoring/Silencing Some Free Software Supporters
We still have this issue in the Free software community
Freenode and irc.com Are Still Around
It emulates retro terminals
We Don't Compete, We Analyse and Report
Principles are so much better than money and they're something money can never acquire
Red Hat is Also Laying Off Staff in India
Red Hat is a dishonest company
All We Want to See is Any Form of Accountability in Europe's Largest Institutions
Because people at the top of institutions should never be above the law!
Finding Recent Talks of Richard Stallman
We already have many pages, documents, and media files. Organising them and helping people find them is the next Big Task.
Richard Stallman First Speaker at Ethereum Cypherpunk Congress the Weekend After This Coming Weekend
He'll be speaking over the Net
Diversity at Red Hat
Remember to judge corporations by their actions, not some Web pages with words in them
First the Python Software Foundation (PSF) Attacked Its Most Productive Volunteers. Now It Attacks Its Funding Sources.
The U.S. National Science Foundation (NSF) rejected by PSF
News of Substance About the EPO's Substance Abuse (Cocaine)
EPO Cocaine Chronicles - link to archived BILD article and photos
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, November 06, 2025
IRC logs for Thursday, November 06, 2025
On Midlife Crises
Focus on the sabotage, not politics
Hallmark of Fake News: "Single-digit" (Percentage) and 1% Isn't the Same Thing
apparently "rebalancing" is the new layoffs euphemism
Links 07/11/2025: Patent Trolls Target Germany, Celebrities Visit Ukraine
Links for the day
Misinformation/Disinformation Disguised as Information About GNU General Public Licenses (GNU GPL) Usage
GPL-type licences (reciprocal obligations) remain dominant
Slopwatch: LinuxSecurity, Brian Fagioli, and Google News Boosting WebProNews (All Slopfarms)
Those slopfarms just saturate the Web with misinformation and mindless chaff
Techrights and Tux Machines at Over 40
19 years of Techrights and 21+ years of Tux Machines
IBM Mass Layoffs This Week Not Limited to North America, Red Hat Staff Terminated
Do not relocate for a company that sees you as nothing but a number or a "human resource"
Coming Soon: More Proof of Cocaine Use at Europe's Second-Largest Institution
Stay tuned
Entering Our 20th Year
...and still looking for answers