Bonum Certa Men Certa

As Expected, Misleading Coverage Regarding Software Patents in the Wake of McRO v Bandai Namco

Reuters and Software Patents



Summary: How media which is dominated or steered by patent law firms covered the McRO v Bandai Namco case, and why it's bound to mislead a lot of people into thinking that software patents are OK

YESTERDAY we wrote about how patent law firms had turned rather nasty against anyone who enforces Alice and trashes software patents in lieu with the law. These firm are losing the battle, so now they play dirty. As far as we are aware, the McRO v Bandai Namco decision was first reported on by IAM and quickly thereafter mentioned by pro-software patents people (along with the misleading headline). In a nutshell, the Court of Appeals for the Federal Circuit (CAFC) defended a few software patents (or just one single patent!) in one rare case (less than 10% of the time do we see such an outcome at CAFC), so patent maximalists make a lot of noise and try to amplify the message (whilst ignoring the decisions they dislike because it's not supportive of their agenda and 'sales'). We expect to see a lot more articles about McRO v Bandai Namco because it is good marketing of their 'services' (or 'products'). They are hoping -- inter alia -- to help their large clients' agenda.



"These firm are losing the battle, so now they play dirty.""Don’t Assume an Abstract Idea" was the headline at Patently-O today. It said: "In an important Eligibility case, the Federal Circuit has ruled that MRCO’s software patent claims are eligible — rejecting District Court Judge Wu’s judgement on the pleadings that the non-business-method claims are invalid as effectively claiming an abstract idea. In my 2014 post in the case I wrote that the case may serve as an opportunity fo the Federal Circuit “to draw a new line in the sand.”"

"Federal Circuit rules software patents valid in McRO v Bandai Namco" was the headline in MIP. The truth of the matter is, the Federal Circuit did not rule software patents valid but only very particular patents (or patent), in one single case (it almost always finds software patents invalid). As long as the US Supreme Court does not rule again on software patents (and as we noted here before, no such case is pending at all right now), Alice still stands, it is very much applicable, and software patents are effectively or generally dead. CAFC must follow the lead of the Supremes (Justices). That's just how the law works.

"We expect to see a lot more articles about McRO v Bandai Namco because it is good marketing of their 'services' (or 'products')."The following headline (shown at the top) from Reuters is basically a lie. Software makers (developers) don't want software patents; few oligarchs that own large software monopolies may want them (e.g. IBM and Microsoft), but not actual software makers, people like yours truly. "Animation patent saved, software makers exhale," says the headline of this report, but every software maker (coder) out there is probably mortified by the idea that patent trolls with their software patents can use this decision to bolster their campaign of intimidation (patent shakedown). This is the same spin as found in the seminal headline from IAM -- spin which strives to convince us that software makers actually want software patents. It's a lie.

Speaking of software patents, watch the details of an upcoming event where software patents lobbyist David Kappos (and former USPTO Director) will share the stage with the current Director who reportedly denies fraud at the USPTO. "Michelle Lee has testified before a House of Representatives committee amid accusations of USPTO examiners claiming unsupported hours," MIP wrote. In addition, the chief judge of the Patent Trial and Appeal Board will be there. To quote IAM: "Joining keynote speaker USPTO Director Michelle Lee will be the chief judge of the Patent Trial and Appeal Board, David Ruschke, ex-USPTO Director David Kappos and former Federal Circuit Chief Judge Paul Michel. Alongside them will be senior representatives from companies that are closely involved in the ongoing patent reform debate, including Google, Johnson & Johnson, Qualcomm, Bristol-Myers Squibb and IBM. Also in the faculty, we have lead counsel in two of the pivotal Supreme Court patent cases of the last decade – KSR v Teleflex and Cuozzo v Lee – as well as several high-profile patent investors."

"This is the same spin as found in the seminal headline from IAM -- spin which strives to convince us that software makers actually want software patents. It's a lie."This seems like a corporate lobbying event, much like that EPO-supported pro-UPC event that IAM set up in the US earlier this year. We don't know what will be discussed in this event, but certainly it's so expensive to attend that it will essentially shut out dissenting views, just like Managing IP recently did (a pro-UPC lobbying event, as we noted last night). The EPO tends to pay published to sell out these days. Sometimes it works.

Taking note of the arrogance and the audacity of the patent microcosm, see this new article by Robert Sachs, a proponent of software patents. Yesterday he wrote: "Of course, one can say that the Federal Circuit is bound by precedent and has no choice but to follow the Supreme Court. This is true but fails to grasp the problem: The Federal Circuit does not even recognize that the Supreme Court's definition is wrong. There have been no dissents by the Federal Circuit raising this issue. Instead, they apparently believe that the Supreme Court is correct, and thus only raise other concerns about the application of the Mayo test."

This is part one of a newly-published series (maybe paper) and when Sachs says that the "Federal Circuit does not even recognize that the Supreme Court's definition is wrong" he basically flings another nonsensical attack on Alice/Mayo, much like Kappos and other interresants. Over at Patently-O, Professor Crouch goes with the headline "Patent Venue at the Supreme Court: Correcting a 26 Year Old Legal Error" and it's basically a rant which relates to the VENUE Act -- a subject which we covered here before.

"East Texas has been somewhat of a cesspool of patent trolls with their ludicrous software patents and they enjoy favourable treatment from the courts there."Crouch does not say "patent trolls" but instead speaks of East Texas. He wrote: "Patent litigation continues to be concentrated in a small number of venues. This case is potentially a big deal because it could eliminate this concentration — especially patent cases in the E.D.Texas. Both the PTO and Congress appear in favor of venue reforms, but statutory reforms will likely wait until the Supreme Court decides TC Heartland."

Well, any such reforms are sorely needed and the sooner, the better. East Texas has been somewhat of a cesspool of patent trolls with their ludicrous software patents and they enjoy favourable treatment from the courts there. It's time to stop this.

Recent Techrights' Posts

Microsoft Rumours: This Week's Scale of Layoffs "Higher Than Reported" and More Coming Soon ("A Lot More Severe" Than May's)
The "3%" figure is false
Slopwatch: Sloppy Brian, Brittany Slop, and General Observations
Creative people don't need slop; there's just nothing good about it, slop appeals to lazy people careless about quality
No, Microsoft Didn't Lay Off So Many People Because of "AI" "Innovation" or "Efficiency" or "Era" or "Revolution" Etc.
Debunking one very common lie
What We Do When We Say "GNU/Linux" to People
It talks about "Linux", "GNU", and what it means to say "GNU/Linux"
Canonical Will Give You Money Only If You Work for Microsoft!
Only if you are servicing (being a slave to) proprietary forges that Microsoft and the NSA control while violating the GPL will Canonical give you money
 
The Lawyers Working for the Serial Strangler From Microsoft on SLAPPing Techrights Have Apparently Lost Their Voice
the moment we mentioned that their media lawyer is leaving they went all quiet in social control media
At IBM, Relocation Can be a Trick or a Trap (IBM Gets Rid of Staff Under the Guise of "Relo")
IBM is not being honest with employees
Over at Tux Machines...
GNU/Linux news for the past day
Beyond Mass Layoffs at Microsoft: Entire Units Shut Down for Good
And it's far from over
Links 15/05/2025: Crikvenica, Analog Computer, and Slop 'Hallucinations'
Links for the day
IRC Proceedings: Wednesday, May 14, 2025
IRC logs for Wednesday, May 14, 2025
Links 14/05/2025: Fentanylware (TikTok) Harms Kids, Russia Refuses to Defuse
Links for the day
Gemini Links 15/05/2025: Poseur Nerds and Mennonites
Links for the day
VS Code Is Not FOSS, And Neither Is the Site "It's FOSS"
VS Code is proprietary spyware of Microsoft, yet this site keeps promoting it like it's FOSS
Links 14/05/2025: Facebook And Instagram Risk Nationwide Bans, Microsoft Subsidiaries Have Mass Layoffs Too
Links for the day
If Microsoft Staff That Strangles Woman Pays You to Write Lies, It Will Not End Well
The past couple of years were our most productive ever
Gemini Links 14/05/2025: "Writing My Story with Inspiration from Notable Lives" and People Start Shovelling Up LLM Slop Onto Geminispace,
Links for the day
Microsoft is Very Highly Stressed About Adoption of GNU/Linux at Windows' Expense (on Former "Vista 10" PCs)
What does this tell us?
Slopwatch: BetaNoise (BetaNews), LinuxSecurity, and Slopfarms Still Promoted by Google News
The primary goal is to demonstrate the problem persists
Links 14/05/2025: Google Agrees to $1.3 Billion Settlement After Spying, China Tariffs Don't Work
Links for the day
There Are Also Loads of Microsoft LinkedIn Layoffs Today (Keep Track of the Subsidiaries They Keep Out of Headlines)
Perhaps lost in the smokescreen
There Are Bigger Rounds of Microsoft Layoffs Coming, a Cull of 10% Implemented in Waves (the "3%" Figure is Misleading, Face-Saving)
Last night we said they might do the layoffs in three or at least two waves
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, May 13, 2025
IRC logs for Tuesday, May 13, 2025
Gemini Links 13/05/2025: Apocalyptic Future and More
Links for the day
Unless a Third of All Microsoft Layoffs Worldwide Are in Redmond (Washington) Alone, Microsoft Has Just Lied to Everyone Via Jordan Novet in CNBC (i.e. the Usual Any Time There's Mass Layoffs and Novet Weighs in With False Numbers)
Maybe when Microsoft said 3% it meant ~6,000 or more in the US alone
McKinsey (McK) is Killing IBM, It's All About Killing This Goose, "National Sales Team 80% on PIP Now" (Preceding Layoffs Without Severance)
PIPs are not based on performance
Links 13/05/2025: Microsoft Breaks Windows Very Badly Again, Mass Layoffs Reported (But False Figures, It's a Lot Higher)
Links for the day
As Expected, Microsoft Uses Media Operative (Jordan Novet) to Downplay the Scale of Mass Layoffs
here we go
2025 Will be a Big Year For GNU/Linux on Desktops/Laptops
with an economy like this, people who don't live in rich countries won't turn to Apple
Signs of Trouble: Microsoft Job Openings for Jobs That Do Not Exist!
Keeping up appearances?
"Special Place in Hell" for Women Who Help Violent Microsofters From Another Continent Attack Local Women Who Did Nothing Wrong, They Just Got Bullied and Deserve Sympathy or Compensation
Nothing says "Brat" like men who attack women, right?
The Numbers Game: 50,000-60,000 Microsoft Workers Laid Off in 2.5 Years? And Debt Still Tripled Under Nadella.
under Nadella Microsoft's debt trebled
The Slow Death of Windows Will Mean the Inevitable Demise of Microsoft
Once people stop using Windows, it'll be hard for Microsoft to sell anything to them
Last Week's Public Talk by Richard Stallman Well Attended and Covered in Technical News Sites
and we're looking at about 60,000 Microsoft layoffs in 3 years
Gemini Links 13/05/2025: Shopping is an Exasperating Nightmare and Making Phones Minimal
Links for the day
23,000 More Microsoft Layoffs by the End of June If the Estimates Are Correct (In Addition to About 6,000 Layoffs So Far This Year)
There's no questions about many layoffs happening this month. It got leaked already. The only question is when (and also how many).
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, May 12, 2025
IRC logs for Monday, May 12, 2025