Bonum Certa Men Certa

Radio Silence in the Quarters of Patent Lawyers as Court of Appeals for the Federal Circuit (CAFC) Likely Ends Software Patents

The CAFC's Haldane Robert Mayer has issued a detailed and abundantly clear ruling, but patent law firms are still ignoring it

Haldane Robert Mayer



Summary: The historic decision from Haldane Robert Mayer (above) is slowly starting to gain some traction in the media, but proponents of software patents pretend not to see it and hope that prospective clients (software patent applicants) won't notice what's happening

SOMETHING very big happened at the end of last week, but it is not being properly covered (if at all) by the patent microcosm. Today, IAM 'magazine' is pushing for software patents (cherry-picking cases to focus on the ones that are pro-software patents) behind a paywall [1, 2] -- all this in spite of the fact that most of them are dead (more of them, more than ever before).



We didn't expect IAM to stand out though. It was probably the first to cover the McRO outcome (pro-software patents), but regarding the above there's radio silence. WIPR, by contrast, finally wrote about it under the headline "Software patents are deadweight loss to economy, says Federal Circuit" and it didn't mince words:

Software patents impose a “deadweight loss on the nation’s economy”, according to the US Court of Appeals for the Federal Circuit.

This was the concurring opinion of Circuit Judge Haldane Mayer in the case of Intellectual Ventures v Symantec and Trend Micro, decided on September 30. He concurred with Circuit Judge Timothy Dyk.

Mayer added that software patents erect “often insurmountable barriers to innovation” and force “companies to expend exorbitant sums defending against meritless infringement suits”.

The ruling found that three patents asserted by licensing company Intellectual Ventures (IV) against anti-virus software business Symantec and IT security company Trend Micro were invalid.

US patent numbers 6,460,050; 6,073,142 and 5,987,610, which all cover anti-virus software, were held not to cover patent-eligible subject matter.


It is good that someone in MIP (Managing IP) covered it as well, albeit MIP called it "controversial" as if to antagonise software patents is something questionable. To quote:

In a controversial concurring opinion in a Federal Circuit decision finding claims of three Intellectual Ventures patents invalid, Judge Haldane Mayer argues: “It is well past time to return software to its historical dwelling place in the domain of copyright.”


This is what software developers have been arguing all along. There is nothing "controversial" about it. What likely "controversial" is a site like IAM openly promoting software patents and its editor in chief arguing with me online, insisting that being against software patents is the same as (or moral equivalent of) wanting layoffs. Whose layoffs? Definitely not software developers'. This is just a politician's trick, trying to equate some policy with "creating" or "destroying" jobs (appeal to "families").

How long before Watchtroll personally attacks this CAFC Judge (as usual)? And maybe Patent Docs also? Both have a tendency to go ad hominem when they dislike the outcome. Here is the patent microcosm shooting the messenger. It didn't take long. This one dismisses the judge as "one senior judge with no business experience nor extensive technology background-baying at the moon" (there's more here).

Some of the worst ad hominem attacks we have come across discredit the US Supreme Court, which, according to this new article from Patently-O, virtually if not practically refuses to refute (technically overturn) Alice:

Not Eligible: Supreme Court Denies All Pending Subject Matter Eligibility Petitions



The Supreme Court has greatly simplified the patent docket by denying certiorari in 10+ cases. Gone are GEA Process (IPR termination decision), Amphastar (scope of 271.e safe harbor) , Commil (appellate disregard of factual evidence), MacDermid (obvious combination), Jericho (Abstract Idea) , Trading Technologies (mandamus challenging CBM initiation), Tobinick (interference), Neev (arbitrator autonomy), Genetic Tech (eligibility), Essociate (eligibility), Dreissen, and Pactiv (ex parte reexamination procedure). Notably, all of the eligibility petitions have been denied.


"Meanwhile," the above adds, "on October 11, the court will hear oral arguments in Samsung v. Apple."

Yes, that's about design patents, which are related to software patents but not quite the same. Here is patent the maximalism site MIP catching up with the latest of Apple litigation, saying that a "jury in the Eastern District of Texas has awarded VirnetX $302.4 million in a verdict against Apple for infringing four patents. This is the third time a federal jury has found Apple liable for infringing VirnetX’s patented technology."

The VirnetX case was covered here thrice in the past week alone and it is still being covered quite a lot by media large and small all around the world (because it's about "Apple", which typically attracts/baits readers). Here is AOL's coverage of it. This involves a court in Texas, i.e. the cesspool of all patent courts. They actually boast/gloat about their bias. It's their marketing strategy.

Speaking of design patents and Apple, Vera Ranieri from the EFF published "Stupid Design Patent of the Month" (later crossposted in TechDirt) in which she wrote:

On October 11, 2016, the U.S. Supreme Court is scheduled to hear oral arguments in the long-running Apple-Samsung litigation. The issue is whether Apple, by virtue of having its designed patents infringed by Samsung, is entitled to all of Samsung’s profits made from the infringing phones (regardless of how much that design contributed to the value of the phone).

This case—in which EFF submitted an amicus brief arguing the award of Samsung’s total profit is improper—is important for many reasons. But one reason stands out: it is trivially easy to get a design patent on trivial designs and, unless the Supreme Court changes the law, that can lead to anything-but-trivial awards in court.

This month’s stupid patent, a design patent, shows just how broken the current system of design patents is. Design patents, unlike the utility patents we usually feature, consist only of a single claim followed by pictures. It is generally the pictures that inform the public as to what is claimed. Importantly, in a design patent only the features drawn in solid lines are claimed. Anything in dotted lines is generally not part of the claim.


If SCOTUS rules against Apple and in favour of Android/Linux/Samsung, this may spell the end of design patents too. Wait and watch how patent lawyers would squirm and deny everything if this was to occur. Is it not funny (or suspicious) that not a single patent law firm is 'seeing' (after several days) the decision where CAFC slams software patents? A lot of patent lawyers are liars, and in light of the latest silence they are more so. They refuse to inform people about decisions where software patents are trashed. It's just not good for their business.

"Well done, Haldane Robert Mayer, for saying what a lot of us software developers have been arguing for well over a decade. Patents are not needed for software, which is a copyright domain (like prose)."Today we found the new article "Federal Circuit Finds Claims Implemented on General Purpose Cellphone Not Patentable", but the patent microcosm is still stuck in the past, persistently pushing an old case like McRO [1, 2, 3] as if we're in the middle of September. This so-called 'analysis' too got reposted (mentioned here before), provocatively asking (in the headline), "Is the Pendulum Finally Swinging Back to Center?"

No, it's swinging in the side that's software patents being verboten and thus worthless. Just don't ask IAM or the patent microcosm as they'll pretend not to know about it. Surely they saw the decision, but they probably just don't know what to say in order to somehow save face, spin it etc. If all they can do is attack the judge (i.e. shoot the messenger), then they'd be better off keeping quiet.

Well done, Haldane Robert Mayer, for saying what a lot of us software developers have been arguing for well over a decade. Patents are not needed for software, which is a copyright domain (like prose).

Recent Techrights' Posts

In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
 
Ageism in Tech
Your protocol is "old"...
Microsoft is at 0% "Market Share" in Most Areas
Depending on the taxonomy chosen, there may be dozens of categories other than desktops and laptops
"The moment MSFT stock fails to start tumbling, that’s the beginning of another corporate giant going under."
There are far more layoffs at Microsoft than at Intel, but you would not get this impression based on Wall Street media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 19, 2025
IRC logs for Saturday, July 19, 2025
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025
Links 18/07/2025: Peace With PKK and Connie Francis Dies
Links for the day
Gemini Links 18/07/2025: Alhena 5.1.8 and Bornhack 2025
Links for the day
How to Top Up a "Limited Liability" With Even More Limitations (Dodging Accountability in the UK)
Some people call it a "shell game". Sometimes it's done for tax evasion purposes.
Free Software Foundation, Inc. (FSF) Inches Towards 75% of Fund-Raising Target
Will the cutoff date be extended again?
Gemini Space (or Geminispace) Grows, But Usage of Certificate Authority Let's Encrypt Drops Further
Ideally, all Gemini capsules should use self-signed certificates
Links 18/07/2025: More Microsoft Layoffs in Activision, The New Stack (Sponsored by Microsoft) Complains About Openwashing
Links for the day
Gemini Links 18/07/2025: OCC25 Gnus for Reading Usenet and RSS Feeds, Small Web Updates
Links for the day
[Meme] 9AM Meeting at Brett Wilson LLP
Brett Wilson LLP in space
Listing as Staff People Who Left the Company More Than Six Years Earlier
There are apparently no laws against that
Brian Fagioli Shovels Up LLM Slop (Plagiarism) Onto Slashdot, Then Uses Slashdot for Affirmation or as Badge of Honour
Notice how some of his latest slop is presented ("as featured on Slashdot")
Social Control Media Productivity
Snapping photos of the bone
The Law Firm SLAPPing Us For the Microsofters Lost 72% of Its Tangible Assets in the Past Year, According to Its Own Reports
That might help explain why they're willing to tolerate serial stranglers from Microsoft as clients
Slopwatch: LinuxSecurity.com Slopfarm and Slopfarms Propped Up by Google News
"As LLM slop is foisted onto the WWW in place of knowledge and real content, it now gets ingested and processed by other LLMs, creating a sort of ouroboros of crap."
Links 18/07/2025: Weather Events and Health Hazards
Links for the day
Microsoft's All-Time Low in Finland
Microsoft is in a freefall
Security: Shane Wegner & Debian statement of incompetence
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 17, 2025
IRC logs for Thursday, July 17, 2025