Bonum Certa Men Certa

Positive Signs After Alice: Software Patents Still Invalidated in Bulk, Eastern District of Texas Down for the Count, and Michelle Lee Stays

Michelle K. Lee
Reference: Wikipedia



Summary: An outline of the latest news from the Court of Appeals for the Federal Circuit (CAFC), the Eastern District of Texas (EDTX), and proponents of software patents, who are growing ever more desperate in the wake of Alice

THE death of software patents (in the US) is habitually and even casually being denied by those who have made a lot of money from them, notably law firms.



Clearly, in the patent microcosm's press (like Texas Lawyer in this case), the term "most popular" means popular among trolls and lawyers. Watch this new article titled "EDTX's Rodney Gilstrap Is Still America's Most Popular Patent Judge" (EDTX is the Eastern District of Texas).

"Clearly, in the patent microcosm's press (like Texas Lawyer in this case), the term "most popular" means popular among trolls and lawyers."The article as a whole is behind a paywall, but the summary states: "While patent infringement filings are down both nationally and in Texas according to a recent report, there's still no question who the King of America's patent docket is: U.S. District Judge Rodney Gilstrap of Marshall."

King of the trolls maybe, now that the father of patent trolling is dead. The Eastern District of Texas and Judge Gilstrap are a farce; as we pointed out a few days ago, the Supreme Court should act fast against both, essentially by moving cases out of this "rocket docket" of patent trolls, starving the demand for kangaroo patent courts.

Writing about the latest twist in the Smartflash case, a site that promotes software patents mentioned how the Eastern District of Texas was once again overruled by CAFC. To quote:

The Federal Circuit has reversed Eastern District of Texas Judge Gilstrap’s denial of a post-trial motion for a judgment of patent-ineligibility under 35 U.S.C. €§ 101 of three patents directed to accessing and storing payment data. Smartflash, LLC v. Apple, Inc., No. 2016-1059 (Fed. Cir . March 1, 2017). Chief Judge Prost, writing for a panel that included Judges Newman and Lourie, saved Apple from a jury verdict that claims of U.S. Patent Nos. 7,334,720; 8,118,221; and 8,336,772 were valid and infringed.


The patent microcosm, including the above site, continues to bemoan the death of yet more software patents. Here is one of the latest examples, "Data Back-Up Claims Held Patent-Ineligible under Alice," and to quote:

As a plethora of cases demonstrates, no matter how separate the patent-eligibility is from the question of prior art in practice, the reality is that the analyses go hand-in-hand. So when drafting patent applications think hard about whether you can state a technical solution to a technical problem. And if you can state a technical problem and solution, do it, as clearly as you can.


A District Court meanwhile throws away yet more software patents that have nothing innovative in them. Why did the USPTO grant these in the first place? Watchtroll says that the defendant "argued that both of TAGI’s patents are directed at unpatentable subject matter under 35 U.S.C. Section 101. In response, the court applied the now familiar two-step standard Alice/Mayo test for distinguishing patents claiming abstract ideas and laws of nature."

"...Alice is here to stay and the Supreme Court has taken no other case that can reverse Alice."As usual, they ruled against these patents, as they do in the significant majority of the cases (most of the time) nowadays. Watchtroll, as expected, continues to moan about death of so many software patents (calling the software "revolutionary"), but maybe these people should just move on and get another (real) job, not lobbying for software patents and fooling developers into pursuing patents that are a waste of money.

The funniest headline we have come across? A clickbait headline from boosters software patents, asking "Goodbye Alice?"

Haha, that's a good one. No, Alice is here to stay and the Supreme Court has taken no other case that can reverse Alice. Here is what the article says, citing front group IPO (which has this new IBM-led campaign to shoot down Alice):

A recent proposal by the Intellectual Property Owners Association (IPO) to amend 35 U.S.C. €§ 101 could bring positive change to applicants attempting to acquire patent rights for computer implemented inventions in the US.

The proposal comes after court decisions such as Alice Corp Pty v CLS Bank Int’l (2012) (Alice Corp) blurred the lines between patentability and obviousness, requiring an assessment of the “inventive concept” to be performed when evaluating subject matter eligibility of an application, and resulting in a significant number of computer-related inventions being found invalid for lack of patentable subject matter.


What's wrong with that? It's about time. Ask actual software developers if they ever wanted software patents to begin with. They never did. Now that software patents are ebbing away so do patent trolls, which the Supreme Court might soon throw out of the Eastern District of Texas.

"Now that software patents are ebbing away so do patent trolls, which the Supreme Court might soon throw out of the Eastern District of Texas."Recently, the "Federal Circuit ruled that companies who receive patent demand letters from trolls can’t sue them in their home district," Daniel Nazer wrote for the EFF. One must remember the close correlation between software patents, patent trolls, and the Eastern District of Texas. If even the lower courts sometimes deny the Eastern District of Texas access to everyone's alleged grievances, then we might not even have to wait until TC Heartland. However, to quote Nazer, the Federal Circuit has not exactly been consistent, at least not yet (consistency will likely come after the Supreme Court issues a ruling on TC Heartland, some time later this year):

If a patent troll threatens your company, can you go to your nearest federal court and ask for a ruling that the patent is invalid or that you aren’t infringing it? According to the Federal Circuit (the court that hears all patent appeals), the answer to this question is usually no. The court has a special rule for patent owners that demand letters cannot create jurisdiction. EFF, together with Public Knowledge, recently filed a friend-of-the-court brief asking for this rule to be overturned. But in a decision this week, the Federal Circuit reached the right result for the accused infringer in the case, but left its bad law largely in place.

[...]

Second, in a case called Red Wing Shoe, the Federal Circuit ruled that companies who receive patent demand letters from trolls can’t sue them in their home district to get a determination the patent is invalid or not-infringed. As others have noted, the Federal Circuit has “gone to great lengths to deny jurisdiction over patentees sending demand letters from afar.”


We eagerly await the decision on TC Heartland, we very much welcome CAFC decisions in favour of PTAB findings (a topic to be covered in our next post), we need to guard PTAB from the patent microcosm, and last but not least ensure Michelle Lee keeps her job in spite of a vicious witch-hunt against her [1, 2, 3, 4].

Recent Techrights' Posts

PCLinuxOS is Raising Money to Support Development After Fire Incident at the Host
PCLinuxOS has not had announcements lately
Over 3 Months Later Brett Wilson LLP Still Unable to Recruit a Media Lawyer?
"Immediate start", but not found... still unfilled
Microsoft is Trying to "Pull a Nokia" on GNU/Linux as Desktop/Laptop Platform
We all remember that rather well, don't we?
Our Three Lawsuits Against Microsofters Are About to Become a Lot More Relevant to GNU/Linux
The Master will easily understand why Garrett has been attacking me since 2012
 
Microsoft Hiring European Politicians is Another Form of Bribery; There Should be a European Investigation
When Microsoft bribed people in Europe for OOXML (there's no denying this!) a European government delegate said that Microsoft operated like a cult
Reda Demanded That FSF Removes Its Founder, Now Reda Works Directly for Microsoft
A sellout and a traitor, first working for GAFAM, now Microsoft
Speed of the Site Should be Better Now
The "bot attacks" impact the speed of the sister site too
Getting More From AnalogNowhere
Recently we used many images from AnalogNowhere
Microsoft, Microsofters and 'Secure' Boot Shills Already Storming the LWN Report About Expiring Certificate, Shooting the Messenger
LWN has clearly stuck a nerve
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 23, 2025
IRC logs for Wednesday, July 23, 2025
Disable "Secure" Boot Today (the Only Better Time to Do So Was Yesterday)
Don't trust anything Red Hat tells you about security
Links 23/07/2025: Windows Killed Company After 150+ Years, US Government Mimics Russia's Attacks on the Media
Links for the day
Freedom Generally Wins at the End, History Shows (But It's Constantly Attacked, Too)
At the moment people realise "Linux" (e.g. Android) isn't enough to guarantee any freedoms
“Inhumane” and “Disgusting” Mass Layoff Execution, According to Microsoft Staff
The workers are looking for other places to work
Misinformation is Not Intelligence
It's low-grade plagiarism and it fails to show any signs of intelligence
The Free Software Foundation (FSF) Has a New Slogan for Its 40th Anniversary
The freedoms are what's most important
LLM Slopfarms gbhackers.com, "Cyber Press" and CyberSecurityNews Are Drowning Google News (and Shame on Google for Feeding and Facilitating Them)
All are run by the same people
Links 23/07/2025: Droplets GUI Patent Monopoly Challenge, Nokia Leverages Illegal Patent Court Against Rivals
Links for the day
Gemini Links 23/07/2025: Community in Geminispace and Challenges With Old Computers
Links for the day
Links 23/07/2025: Slop Patents Tackled, Slop Copyright Misuses Tackled by Politicians
Links for the day
Links 23/07/2025: Retreating From Transparency on Jeffrey Epstein, We No Longer Have Press Freedom
Links for the day
Gemini Links 23/07/2025: Piano and Food
Links for the day
New and Old
On Ageism in Tech
Slop Is Not Intelligence and It Does Not Enhance Productivity
Like voice dictation, which cannot tell the difference between "sheet" and "shit"
EPO Crimes Are Spreading to the British Court System
Society is now paying the price for failing to tackle crimes at the EPO
It's Time to Dump SharePoint and Here's What to Use Instead
Nextcloud, ownCloud, Bookstack, MediaWiki, and MediaGoblin
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, July 22, 2025
IRC logs for Tuesday, July 22, 2025
Brett Wilson LLP Has Gone Silent
Sometimes silence says more than nothing at all
Slopwatch: LinuxSecurity, Planet Ubuntu, and LinuxTechLab
some slopfarms show no remorse and they don't value their reputation at all
Links 23/07/2025: Book Bans, Storms, and Kangaroo Court for Patents Commits More Unlawful Acts of Overreach
Links for the day
Gemini Links 22/07/2025: Thinkpad and Pinephone
Links for the day
Links 22/07/2025: "Blog Restart" and Microsoft Clobbered by “ToolShell"
Links for the day
Global Warming and Global GAFAM Energy-Wasting
Burn more money (borrowed, loans), then hope the waste will somehow translate into profit?
No Compliance With the European Patent Convention (EPC) at the European Patent Office (EPO)
It's about preventing competition against this autocracy
Blue-Collar Trolls vs White-Collar Trolls
Examples of white-collar trolls
Apple Vision Pro Failed So Badly That Its Sales Are About 2,000 Times Smaller Than iPhone Sales
What's left for Apple to offer other than hype?
To Millions of People "Year of the Linux Desktop" Was Some Time in the 1990s (Bootable GNU/Linux as a Complete Operating System is Over 33 in Age)
In some sense, "year of the Linux desktop" was 33 years ago
Make No Assumptions (or Demands) About the Screen Resolution Used by Other People
There are usability aspects, aside from accessibility aspects
Why Wayland (and XWayland) Won't Solve the Key Problem It Proclaims to be Tackling (the Same Is True for Rust)
The problem isn't Wayland per se but the false promises and efforts to force everybody to move to it whilst insulting or demonising everyone who won't play along
They Don't Tell Us that 'Digitalisation' (Now Sold as "Hey Hi") Just Means Customers Become Unpaid Staff and Are Made Accountable
People are being conditioned to associate technology with something undesirable, at times even unbearable
Diplomatic Immunity Should Not Exist for Anybody
The EPO in its current form gradually 'normalises' the end of European democracy
Brett Wilson LLP Stopped Sending Me Papers When I Showed It had Sent Me Over 5 Kilograms of Legal Papers
A week ago we lodged our third lawsuit
Microsoft Mass Layoffs and Shutdowns Became the New Normal at Microsoft
Microsoft mass layoffs became a topic of everyday media coverage since May
Amazon Web Services (AWS) Has Layoffs and Microsoft Gaming/Entertainment Division Has an Uncertain Future
it's good to see all those horrible things crashing and burning
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, July 21, 2025
IRC logs for Monday, July 21, 2025
FSF "Raised Almost $139,000 During This Summer Campaign"
"Thank you for making a stand against dystopia!"
Gemini Links 22/07/2025: VPS Exploited and Fear of View
Links for the day