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

Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
 
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
When You Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol
New US Editor in The Register is 84% Microsoft/Windows Booster
It'll be worrying if it carries on like this
Links 25/07/2025: Slop Blunders and China Has Code of Conduct for Lawmakers in HK
Links for the day
Gemini Links 25/07/2025: Some Books and Babies and Capital
Links for the day
Links 25/07/2025: NOAA Cuts Endanger Lives, "Europe's Self Inflicted Cloud Crisis"
Links for the day
They Try to Lecture Us on Ethics
They even removed "master" from Microsoft GitHub
The Future of the Web is One Rendering Engine or 'Flavours' of Chrome
The future of the Web does not look bright at all
Best Sites Are Not Optimised for Any Browser, They Work Equally Well With All of Them
Red Hat (IBM) is making rubbish sites
YouTube is a Spamfarm, Slopfarm, and Clickfarm (a Lot of Numbers There Are Fake)
Those who don't fake look unpopular and unimportant
We Don't Do JavaScript and Pages Are Small
Thankfully Gemini Protocol has nothing like JavaScript
'Tech' is Not Technology
Some people use terms like 'Old Tech'
IBM's Debt Rose by Almost 10 Billion Dollars in the Past 6 Months Alone
The "hey hi" circus is coming to an end
Yes, Master
Gaslighting by actual racists
Microsoft Bribes and Buys Politicians to Tell Europe What to Do About Free Software (Which It's Attacking)
Microsoft: we speak for the thing that we are attacking! Follow the money...
Making Backups Quickly and Reliably
Backups are imperative, more so in an age of uncertainty, unpredictable weather, and worsening standards (quality of products going down while prices go up)
Techrights Investigation: Estimating the Point in Time LinuxIac Turned Into LLM Slop (Part of the Time)
Bobby Borisov got lazy
10th Month, Ten Weeks From Now, at Ten AM
In Wentworth Institute of Technology in Boston
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 24, 2025
IRC logs for Thursday, July 24, 2025
A Nadella Memo Distracts From Microsoft's Cheapening Of the Workforce
Right now the "MSM" (mainstream media) is flooded/overwhelmed by garbage pieces that relay lies for Nadella
Vanishing Faces of GNU/Linux
Free software projects do not depend on any one person or company to still exist
Microsoft Says It Lost 400 Million Windows Users, Now It's Waiting for GNU/Linux to Stop Booting on 'Old' PCs
When it comes to Windows, Microsoft is fully aware of the issue and statements it made earlier this summer suggest it lost 400 million Windows users
Slopwatch: LinuxTechLab, linuxsecurity.com, LinuxIac, and More
Also: The Register's Microsoft agenda (new editor)
Gemini Links 25/07/2025: Gemtext Aware Titan Editor and Gemini Protocol Comeback
Links for the day