Bonum Certa Men Certa

Software Patents Under Unprecedented Invalidations Pace, Patent Maximalists Scramble to Reverse This Trend or Perception Thereof

Related: The Patent Trial and Appeal Board Breaks Its All-Time Records, Revealing Continued Improvement of Patent Quality

False coverage rate Reference: False coverage rate (the patent microcosm uses a statistically-misleading subset of cases or compares non-overlapping months to belittle the progress made and the low likelihood of software patents withstanding/surviving scrutiny)



Summary: Misleading narratives, plaintiff-friendly courts, efforts to oust USPTO leadership etc. have all been attempted in the face of system-wide amelioration of an otherwise abusers-friendly system; we present some examples of selective new coverage from the patent microcosm

SOFTWARE patents are the biggest problem for GNU/Linux right now. A lot of people don't know it because patents don't have any physical presence and they are typically silent in the background, e.g. back room deals and settlements. Trolls like to work in the dark, keeping their victims isolated and helpless.



"Should listen to this Episode BEFORE signing @TheLOTNET Targeted by patent trolls," says this new tweet about a new podcast from IP Wire -- an episode that touches OIN and Microsoft. We recently wrote about software patents aspects of OIN and inability to do anything about Microsoft's trolls who are the company's latest patent strategy against GNU/Linux [1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12]. Sadly, though many Free software proponents prefer to overlook the problem, patent blackmail persists and it harms the ability to freely distribute Free software such as GNU/Linux.

"Sadly, though many Free software proponents prefer to overlook the problem, patent blackmail persists and it harms the ability to freely distribute Free software such as GNU/Linux."Thankfully, the US has been cracking down on software patents -- a development we are profoundly thankful for. The Court of Appeals for the Federal Circuit (CAFC), together with PTAB, is smashing a lot of software patents to pieces. Patent maximalists like Crouch are trying to use CAFC to slow PTAB down, but they have not been successful. They also try to cause a stir for the removal of the Director of the USPTO, who has been partly responsible for various key reforms.

Not too long ago in Smartflash, LLC v Apple Inc. yet another software patent got invalidated/struck down by CAFC, as these lawyers have only just noticed:

More Patent Invalidated as Abstract Ideas



[..].

The case is Smartflash, LLC v. Apple Inc., decided by the Federal Circuit Court of Appeals on March 1, 2017. Smartflash owned three patents for technology that limited Internet access to data (video, audio, text, and software) to users who had paid for access. In 2013, Smartflash sued Apple in a Texas district court for infringement of the three patents. In 2015, the jury returned a verdict of infringement against Apple, finding Apple liable to Smartflash for $533 million in damages.


Suffice to say, law firms are not particularly happy about it. Some of them try to figure out ways around CAFC and writing to other law firms (behind paywall) they say: "Several recent decisions by the U.S. Court of Appeals for the Federal Circuit have untangled crucial uncertainties plaguing software patent applicants following the outcome of Alice Corp. v. CLS Bank International, 134 S. Ct. 2347, 2355 (2014)." (the headline is somewhat misleading and gives unnecessary optimism with, "Federal Circuit Cases Clarify What Makes a Valid Software Patent").

"Sites like these tend the cherry-pick the minority (20% or so) of cases where CAFC and PTAB are not in agreement."In other news about PTAB/CAFC team-ups against software patents, here is the National Law Review saying that a "determination by the PTAB [...] asserted claims were directed to patent-ineligible subject matter under €§ 101..."

Sites like these tend the cherry-pick the minority (20% or so) of cases where CAFC and PTAB are not in agreement. Here is the 'beef' of the article:

After the US Court of Appeals for the Federal Circuit addressed the very same issue and patent, the Patent Trial and Appeal Board (PTAB) reached a split decision, finding the claims to be patent eligible under €§ 101 despite new characterizations of the abstract idea and new arguments from the patent owner. IBG LLC v. Trading Techs. Int’l., Inc., Case No. CBM2015-00182 (PTAB, Feb. 28, 2017) (Plenzler, APJ) (Petravick, APJ, dissenting in part).

The patent at issue is directed to a user interface for an electronic trading system that allows a remote trader to view trends for an item. The patent owner asserted this patent against several defendants, who in turn sought covered business method (CBM) patent reviews in America Invents Act proceedings at the PTAB. One of the earlier cases resulted in a determination by the PTAB that the asserted claims were directed to patent-ineligible subject matter under €§ 101. On appeal of that earlier case, the Federal Circuit reversed and issued a non-precedential decision finding the claims patent eligible. In view of the Federal Circuit’s decision, the PTAB in the instant case allowed further briefing on the impact the Federal Circuit’s decision.


Another CAFC case was covered in lawyers' media a short while ago. In it, patent law firms latched onto the edge cases (as usual) where patents were tolerated by CAFC, unlike PTAB. They try to accentuate the supposed 'rift' between the two, even though both PTAB and CAFC eliminate software patents most of the time and are also in agreement with one another (also on the issue of business method patents). To quote some portions from the microcosm:

Addressing issues of obviousness and anticipation in the context of an inter partes review, the US Court of Appeals for the Federal Circuit issued two decisions with respect to the same patent, vacating and remanding the Patent Trial and Appeal Board’s (PTAB’s) decision finding the claims invalid as obvious in the first case, and affirming the PTAB’s finding that the claims were not anticipated in the second case. Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center v. Eli Lilly and Co., Case No. 16-1518 (Fed. Cir., Feb. 28, 2017) (Bryson, J) (Newman, J, concurring in part, dissenting from the judgment); Eli Lilly and Co. v. Los Angeles Biomedical Research Institute at Harbor-UCLA Medical Center, Case No. 16-1547 (Fed. Cir., Feb. 28, 2017) (Bryson, J).

[...]

The Federal Circuit agreed with LAB’s contention that the PTAB’s findings were insufficient to establish obviousness under the correct claim construction. Specifically, the Court found that, while the PTAB concluded that the prior art references rendered obvious the treatment of erectile dysfunction via the claimed method, it did not make factual findings to determine whether those references showed it would have been obvious to use long-term continuous treatment with a PDE5 inhibitor to treat individuals with penile fibrosis and to achieve the arrest or regression of that condition. The Court noted that the correct construction of the pertinent claim language required more than simply treating erectile dysfunction. The Court also noted that the PTAB failed to consider the possibility that, even if the combination of prior art references taught long-term treatment with a PDE inhibitor of individuals with some forms of erectile dysfunction, a person of skill in the art may not have been motivated to combine those same references to treat individuals with fibrosis-related erectile dysfunction, for whom, LAB argued, the results would have been expected to be detrimental.


Why is there virtually no coverage of the 80% or so cases where CAFC looks into PTAB decisions (upon appeal) and agrees with PTAB? Well, that would simply not serve the "perception management" agenda of patent law firms and maximalists. They're not being honest; they don't tell the full story. That's greed.

Recent Techrights' Posts

Like Microsoft and IBM, the 'Alicante Mafia'-Governed EPO Does PIPs Nowadays (at the EPO, It's "Professional Incompetence Procedure")
So "PIPs" are definitely in the EPO and we saw letters sent to staff
Time for Change, More New Articles, Less Curation
The oligarchy wants to gut the real press and replace media with slop and social control media (or social control media with slop in it, i.e. their own voices, mechanised)
Almost 1,600 EPO Employees Went on Strike Last Week
There is another strike coming 2.5 weeks from now
Over at Tux Machines...
GNU/Linux news for the past day
You Know Microsoft's "Value" is 100% Fictional When in One Single "Trading" Day in Wall Street It Loses THREE TIMES More in "Value" Than It Was 'Worth' in 2009
Microsoft does not behave like a company riding trillions but like a company that struggles with payroll
Better Outcomes When Facing the Discomfort of Conflict
Don't take the easy way out when the "hard way" is the right way and it can result in positive revelations
Leaving the United States 3 Years Ago Was the Best Decision We Made
A lot of stuff is being consolidated
 
Links 05/02/2026: Canadian Government Uses US LLMs to Override Expert Opinions, NVIDIA Troubles Due to Enablement of Mass Plagiarism ('Piracy') Misleadingly Obscured as "Hey Hi"
Links for the day
Explaining the Letter From JUDGE SYKES FRIXOU, Threatening Me Around the Time GNOME's Nat Friedman Lost His CEO Job at Microsoft GitHub and His Best Friend Got Arrested for Strangulation
this letter (with annotation) is critical
Linuxiac Not Rehabilitated, It's Still Full of LLM Slop (Part of a Trend)
The Web as a resource/source of information is perishing
"Sponsored by Azul" to Write Fake 'Article' About Azul, Quoting Azul Itself
The "journalism" industry [sic] became so utterly corrupt
JuristGate is for sale: three billion Swiss francs for a domain name
Reprinted with permission from Daniel Pocock
Gemini Links 05/02/2026: Coercion, Antibiotics, and LVDT Project
Links for the day
IRC Proceedings: Wednesday, February 04, 2026
IRC logs for Wednesday, February 04, 2026
Links 04/02/2026: Extreme Malice in Microsoft's Visual Studio Code on GNU/Linux, More Hey Hi (AI) Chaos
Links for the day
Sexism & GNOME: shaming men, hiding women, Sonny Piers update
Reprinted with permission from Daniel Pocock
Gemini Links 04/02/2026: Humanity and Animality, systemd (Controlled by Amutable, a Proxy of Microsoft) Moves on to "Extinguish" Phase
Links for the day
Certificate Authority Let's Encrypt Used to be Widely Used in Geminispace, Now It's Down to Just 0.2% of the Whole
Let's Encrypt is not your friend
What IBM Does Is Clearly Illegal in the US: Tying Severance Packages to NDAs (Non-Disparagement Agreement/Clause)
The NDAs make things worse; they keep people isolated and silent
Microsoft's Giant Snowball of Layoffs and PIPs (in 2026)
They would delay until March or April if they wanted to, but then we can expect numbers exceeding 10,000 layoffs (Microsoft always low-balls the real figure/s)
Mozilla Turned Firefox Into Shovelware, Adding 'Kill Switch' for Slop Still Means Mozilla is Participating in a Pyramid Scheme, Plagiarism, Grifting
Mozilla is still a slop pusher
Links 04/02/2026: "Laws of Succession" and Microsoft's VS Code as Code-Stealing Malware
Links for the day
BillBC (BBC) Covered Up Pedophilia, Now It's Covering Up for Its Sponsor Bill Gates by Reprinting His Lies, Which His Own Wife Disputes
Is Bill Gates having orgies (group sex)?
Phoronix Swims With the Real Trolls, People Who Fancy Proprietary Software and Back Doors
If Larabel begins to actively participate in provocation with the "Microsoft GitHub fans club", what does this tell us about Phoronix?
They Know Microsoft Layoffs Are About to Hit Them Hard
The gaming division at Microsoft is a complete catastrophe, lots of money (debt) down the drain [...] Buying Activision was all about misleading shareholders or hiding the deep trouble/problems XBox was having
Red Hat is Not a Linux Company, It's IBM's Ponzi Scheme Enabler
Had we still been stuck in 2021, perhaps IBM would plaster "NFT" or "metaverse" all over RedHat.com
Keep Grinding
"Don't let the bastards grind you down"
Mobbing at the European Patent Office (EPO) - Part III - Who's Going to Pay for the EPO's Corruption? (Aside From European Citizens)
Some people inside the EPO reached out to us
"Investors Are Concerned About an AI Bubble" (That GAFAM and IBM Ride)
A few decades from now IBM will only be remembered in the same sense many so-called 'AI' companies will be remembered
EPO Staff Union: "Very High Strike Participation on Friday 30 January", Another Strike Starts 19 Days From Now
EPO management in a bit of a panic
Censorship/Free Speech and Social Control Media
It's important to have a grasp of how contemporary censorship works and how to tackle it
Google News as Slop Booster
this is what Google links to
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 03, 2026
IRC logs for Tuesday, February 03, 2026
Gemini Links 04/02/2026: "Raspberry Pi Relaxes the Rules for Its RP2040 Hacking Challenge" and "Long Web Society"
Links for the day
IBM Falls by Over 10%
a recipe for disasters like accounting fraud
Links 03/02/2026: Windows Copies GNU/Linux, Windows TCO Shown Again
Links for the day
Gemini Links 03/02/2026: Alhena Turns One, Slop Rejected, and Max Roy Carrouges Recalled
Links for the day
How to Identify Demonisation or Dehumanisation Tactics Against Interesting Figures or Luminaries in Free Software
Rather than in general or generally in technology
We Should Learn From Bulgaria
Why can't European companies and government recognise and react to a threat (when they see one)?
Dr. Andy Farnell on Why and How European Authorities Can Adopt Free Software, Parenting in the Age of Digital Abundance
Will Europe use technology that Europe controls (not the hegemon), for a change?
Canonical: Ubuntu is GAFAM (US), We're Resellers of American Proprietary Software
They want people to pay for a licence
Seems Like IBM Trolls Use Chatbots to Vandalise Platform That Discusses IBM's Secret Layoffs, Forever Layoffs
Not for the first time either
You Know Your Company is Dead or Basically a Pyramid Scheme When Jim Cramer Keeps Promoting Its Stock
How much does IBM pay for "puff pieces" or "fluff" about QC?
Red Hat (Under IBM) Works for Microsoft (Proprietary Software) and Slop
Yesterday Red Hat's official site, redhat.com, published exactly 5 new blog posts
IBM is Dying (More Layoffs), Red Hat Will Continue to Suffer From the Acquisition
Financial engineering
Colombia Adopting GNU/Linux Even Faster (at Microsoft's and Apple's Expense)
Do politics play any role in this?
An Effort to Tackle Slavery in 'Open Source' Clothing
"a civil rights lawsuit to examine the concerns of censored developers in the free, open source software ecosystem"
$15 billion lawsuit: Ubuntu, Google & Debian crowdfunding campaign launch
Reprinted with permission from Daniel Pocock
The Solicitors Regulation Authority (SRA) Delusion - Part II - Why We Need to Expose the SRA to More Daylight, Public Scrutiny
SRA is neither effective nor regulated
Links 03/02/2026: "Distraction is a Sin" and Fake "Encryption" (Surveillance With Good Marketing)
Links for the day
400-Page US Federal Court Against Abuses by Google, Microsoft and Front Groups That Abuse Volunteers for American Corporations
There are 386 pages in total (in the US claim)
Corporate Influence Never Impacted Us
There's no reason to assume we'll ever "sell out"
Growth of GNU/Linux in Cuba
Right now a lot of the world drafts or already implements a GAFAM exit plan
A Day After EPO Strikes an Escalation to Heads of Delegations to the Administrative Council
They rely on the European media playing along, helping them to hide major blunders, even crimes
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Monday, February 02, 2026
IRC logs for Monday, February 02, 2026
Gemini Links 03/02/2026: Stargazing, Development Boards, and Tcl/Tk Slop
Links for the day