Bonum Certa Men Certa

A High US Court (CAFC) Continues Rejecting Software Patents (Even of Microsoft's Patent Trolls)

Microsoft too has trouble in that court, but will Microsoft change its course?

Sharon ProstSummary: Under Chief Judge Sharon Prost (who took over after the corrupt Randall Ray Rader had been pushed out 3 years ago) CAFC has become the opposite of what it used to be, at least when it comes to patents

THE Court of Appeals for the Federal Circuit (CAFC) is where software patents were born. Nowadays, in spectacular and sharp contrast, CAFC is where many software patents come to die (for good). Things have certainly not been the same since Alice.



"Things have certainly not been the same since Alice."Firms that profit from software patents are not happy about this. Some are attacking CAFC judges, whereas others are more polite. Fox Rothschild LLP, for example, was promoting software patents a few days ago and it was pressuring CAFC to allow software patents in defiance of the Supreme Court. It's yet another one of those thousands of rants about Alice and decisions which cite Alice. Here is the original, which was cross-posted (probably for a payment) and said: "In the past year, several Federal Circuit decisions defined situations in which software inventions could be eligible for patenting in the United States. However, two recent Federal Circuit decisions show that the path for patent-eligibility is not yet clear, especially for patents that claim methods of processing or presenting data."

"They'll just carry on asking for the contrary stance/more "clarity", as if the Justices got it all wrong and need to be lectured by the patent 'industry'."This has in it the false assumption that some software patents should be allowed. Or that it all boils down to "clarity". So far this year CAFC has rejected software patents almost all the time. Why don't they just get a clue? The Justices were clear enough about abstract patents, but patent extremists refuse to understand (or pretend not to). They'll just carry on asking for the contrary stance/more "clarity", as if the Justices got it all wrong and need to be lectured by the patent 'industry'.

From Fox Rothschild's conclusion: "The Federal Circuit’s case-specific, and sometimes inconsistent, interpretations of Alice leave software patent applicants, patent litigants, and USPTO Examiners with even less definitive guidance as to the patent-eligibility of software inventions than they had a few weeks ago. And with the Supreme Court’s recent decision to deny certiorari in a case that asked “Whether [a] technological breakthrough is not an inventive concept under the second step of Alice merely because the court believed the breakthrough could theoretically be implemented without a computer,” clarification from a higher authority is not likely on the horizon."

"Seeing the sorts of abuse from the patent microcosm is a testament to its misery and agony."There's no need for "clarification"; what's needed is amendment of USPTO guidelines to altogether end software patents -- something which is rumoured to be work in progress.

Seeing the sorts of abuse from the patent microcosm is a testament to its misery and agony. These people refuse to accept reality. One of them portrayed CAFC as a killer with threats, with words like these: "RecogniCorp's Petition for Cert Re Patent Kill under Alice Threatening Validity of Much if not All Computer Tech: https://dlbjbjzgnk95t.cloudfront.net/0980000/980981/2017-11-01%20petition%20for%20writ%20of%20certiorari%20-%20recoginicorp%20v.%20nintendo.pdf …"

"Microsoft's biggest patent troll (IV) is repeatedly finding out that its large arsenal can be trivially invalidated."There is another case involving Intellectual Ventures (IV), which has had many of its patents found to be invalid under Alice. Here is that word "Kill" again, as in: "Fed. Cir. Affirmed a 12(b)6 Alice Kill of an IV Patent: cafc.uscourts.gov/sites/default/… https://t.co/iNyNZR2POL"

Then came another patent maximalist, stating that the "Federal circuit now wants in on the game of invalidating patents without much work, 101 is just such a convenient, tempting tool https://twitter.com/patentbuddy/status/926482154598608901 …"

Well, it's the law. De facto law.

The above invalidation has since then been covered by Law 360. Microsoft's biggest patent troll (IV) is repeatedly finding out that its large arsenal can be trivially invalidated. According to the following, this troll has now amassed over 70,000 patents:

The Federal Circuit affirmed Friday a lower court ruling that found an Intellectual Ventures patent on screening for “errant” computer files was invalid under the U.S. Supreme Court’s Alice ruling, agreeing that the company failed to show that the patent’s claims were not abstract.

Intellectual Ventures, a major patent licensing company that owns more than 70,000 patents, accused Erie Indemnity Co. and other insurers of infringing four patents through their databases and other software.


As can be expected from Patently-O, there's now some more CAFC bashing. Judges rather than laws are being scrutinised. They're being criticised for knocking out software patents (the Two-Way Media case):

The Federal Circuit’s decision in Two-Way Media is in some amount of tension with the court’s 2016 decision in Amdocs v. Openet Telecom. In Amdocs, the court noted that the claims appeared problematic under Section 101 (abstract ideas), but that the architecture – as specifically described in the specification but more generically claimed – showed that the invention was actually a technological improvement.



Attempts to use Alice to throw out patents (also Two-Way Media) were also covered in another post from Patently-O. For background: "Two-Way sued Comcast (and others) for infringement. However, the district court granted the defendant’s motion for judgment on the pleadings – holding that the claims were invalid as ineligible under 35 U.S.C. Section 101 as interpreted by the Supreme Court in Alice and Mayo. In that process, the district court refused to consider evidence of the patents’ novelty and nonobviousness – holding that such evidence would be irrelevant to a Section 101 inquiry. [...] Note here that the court seemingly offered a road-map for the patentee — a technological arts test — noting that the specifications appear to describe a “system architecture as a technological innovation” but “the claim—as opposed to something purportedly described in the specification—is missing an inventive concept.”"

"They've long attempted to change the debate and warp examination using words alone."Haug Partners LLP's Jon Gordon, writing for IAM (the patent trolls' lobby), says that CAFC already clarifies when/where software patents are banned. To quote: "Patents directed to software-implemented inventions commonly describe and claim the invention in terms of the inventive idea and this disclosure suffices to enable persons skilled in the computer arts to practise the idea. [...] principles are indeed emerging and they show the beginnings of the path to patentability for software-implemented inventions."

The term "software-implemented inventions" seems new; it's like a combination of software patents and CII (computer-implemented inventions) and these are mostly syntactic/semantic tricks. They've long attempted to change the debate and warp examination using words alone. But code is still code, no matter what people call it (code is not an "invention" though, it's development like that of a building or sculpting).

"Microsoft along with its trolls carry on leveraging software patents -- typically behind closed doors -- to demand 'protection' money."These people try hard to study ways of fooling examiners and getting patents past judges as well. Patently-O has taken stock of popular CAFC cases and later recalled MasterMine v Microsoft.

MasterMine v Microsoft was mentioned here back in the summer and again last week when the case suddenly resurfaced. CAFC gave some new life to it and Patently-O then said that "the decision here continues the Federal Circuit’s implicit rejection of the Supreme Court’s Nautilus decision."

"What remains noteworthy, all in all, is CAFC's intolerance of software patents. What's also noteworthy is the patent microcosm's intolerance of CAFC."Well, Microsoft ought to fight against software patents, but this case won't be enough to convince it. Microsoft along with its trolls carry on leveraging software patents -- typically behind closed doors -- to demand 'protection' money. Here is what WIPR wrote about this latest twist:

The US Court of Appeals for the Federal Circuit has reignited a patent battle between multinational Microsoft and software company MasterMine Software.

Yesterday, October 30, the Federal Circuit affirmed a lower court’s claim construction of two data-mining patents owned by MasterMine, but reversed the court’s determination that they were indefinite and remanded the case.

In 2013, MasterMine sued Microsoft for infringement of two related patents, US patent numbers 7,945,850 and 8,429,518, at the US District Court for the District of Minnesota.


What remains noteworthy, all in all, is CAFC's intolerance of software patents. What's also noteworthy is the patent microcosm's intolerance of CAFC. It's probably worth commending CAFC for what it is doing, reminding the judges that the real industry (i.e. not mere litigators) support its recent judgments. Its older judgments have been repeatedly overturned by the Supreme Court, so perhaps it's learning to adapt to this new reality.

Recent Techrights' Posts

10 Days Ago Richard Stallman Gave a Long Interview in French (linuxfr.org)
English translation
Science, Not Fast Food/Junk Food
The commercial exploitation of users won't stop until users exercise full control over their software or - more broadly - their computing (including data)
[Video] Dr. Richard Stallman at Technické Univerzitě v Liberci
New/via libre-liberec.cz
Security is Desirable, But Not When the Term Security is Misused to Imply Centralisation of "Trust" (Whose?)
'Security' is not an excuse for vendor lock-in
 
Digital Sanitation Good Practices
leave behind Microsoftism
The Free Software Foundation, Which Has Appointed a 43-Year-Old President, is Looking to Add Another Board Member (or Treasurer)
expect the FSF to add more people
Richard Stallman Confirms Next Week's Talk at Technical University of Munich, We Urge EPO Staff to Attend
That's probably late enough for EPO staff to attend after work
Gemini Links 18/10/2025: Notifications and Geminaut
Links for the day
Many Red Hat People Are Leaving, But It'll Be Framed Publicly as Leaving IBM
Similarly, IBM layoffs (or "RAs" as they're called) include Red Hat layoffs
Expect More Waves of Microsoft Layoffs This Month (at Least Two Rounds Confirmed Already)
From what we can gather, assuming the recent rumours about XBox are true, there will be at least 3 waves of Microsoft layoffs this month alone
Security Issues in Cisco and Jenkins Passed Off as "Linux" Problems
Fear, Uncertainty, Doubt (FUD) tactics
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, October 17, 2025
IRC logs for Friday, October 17, 2025
Slopwatch: LinuxSecurity, Linux Journal (Slashdot Media), UbuntuPIT, and Google News (Noise)
egregious plagiarism
Links 17/10/2025: Better Answers Sought After Air Crashes, "China Fans Patriotic Sentiment as Trade War With U.S. Heats Up"
Links for the day
Links 17/10/2025: Fentanylware (CheeTok) Causing Problems, Japanese Government Blasts Slop
Links for the day
The Linux Foundation Seems to Have Turned Linux.com Not Only Into a Spamfarm But Also LLM Slopfarm
it's polluting the Web, even important domains like Linux.com, with spam and LLM slop
Links 17/10/2025: UK’s Largest Breach Penalty and Windows TCO Examples
Links for the day
Go Watch Video About Librephone, Get Microsoft Ads
Very ethical company...
Campaign of Defamation Against the People Who Built NixOS (and Are Now Pushed Out From Their Own Project)
We've already grown familiar with - and resistant to - such tactics
Links 17/10/2025: Nestlé Crisis, Canada Post Versus 'Gig Economy' [sic] and Vista 11 Breaks Itself
Links for the day
Tux Machines Has Helped Separate Opinions/Analysis From News
In September 2023 we decided to split things apart and not repeat links in both sites
Tux Machines Has Improved Navigation of GNU/Linux and BSD News
Some more 'wiring' work
What a World Would Look Like If Everyone Used Free Software Only
Freedom is what matters, not "Open".
The Media Helps Microsoft, Amazon and Others (GAFAM and Beyond) Lie About Mass Layoffs Amid Valuation Bubble
The media, instead of saying that there's an "AI bubble" crashing the economy might instead choose the narrative of "jobs replaced by AI"
Bad Tempered? You Might Have Just Given Away That You're Losing the Argument
Brett Wilson LLP is fully aware that it is being investigated
Richard Stallman (RMS) is a Target of Defamation Campaigns Because of His Views on Software (But Politics Are the Excuse for Defaming Him)
Here in this site we try to refrain from politics, except in Daily Links
End of Vista 10 and Rise of GNU/Linux as Client Side Operating System
It seems certain GNU/Linux will grow in popularity over time
Taking Stock of a Week's Worth of EPO Leaks
We remain committed to exposing EPO corruption as long as it keeps happening
Mathieu Parreaux claims FINMA knew since day one
Reprinted with permission from Daniel Pocock
Calumny, Libel, Joerg Jaspert & debian-private untouchable cyberbullies
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 16, 2025
IRC logs for Thursday, October 16, 2025
Techrights Turns 19 in 3 Weeks
coverage of suppressed topics and protecting all sources/whistleblowers
International E-Waste Day Same Day as End of Vista 10
message from Akira Urushibata
The EPO's Central Staff Committee Presents Evidence That Staff Compensation Lowered While the Office Increases Income by Illegally Granting Invalid Patents
These people become millionaires by doing illegal things
Second or Third Wave of Microsoft Mass Layoffs in October 2025, This Time Portugal
Those are just the ones we know about, there may be several more
'Help Net Security' (helpnetsecurity.com) May Have Become a Slopfarm as Well
Zeljka Zorz, Editor-in-Chief at Help Net Security, was reported to us
Gemini Links 17/10/2025: Rant About Network Solutions, Strange Anomaly on Lagrange
Links for the day
EPO Staff Representation Lacks Social Dialogue With Relevant Management, Controversial and Sometimes Illegal Policies Implemented Without Necessary Input
"In this open letter, the CSC requests that the President submits an agenda item in the next available General Consultative Committee (GCC) meeting on setting up regular meetings between the CSC and the higher management of DG1."
Links 16/10/2025: Political Leftovers and Gemini Protocol Links
Links for the day
Lies Need to be Corrected
the Court never invited us
Slopwatch: Guardian Digital (linuxsecurity.com), Slashdot, Google News, and More
Maybe one day, once the bubble pops completely, Google News will just outright delist all slopfarms
Lufthansa Modern Slavery, Joerg Jaspert (ganneff) & Debian NSB Softwareentwicklung charade
Reprinted with permission from Daniel Pocock
Links 16/10/2025: US Starting More Trade Wars With China, CIA War on Venezuela
Links for the day
SUSE Blog is Still LLM Slop, Marketing Manager at SUSE Cannot Write
Would you buy from a company or seek support from a company that cannot even write (or fakes writing)?
Pretend You're Not Dead: Microsoft Spent Almost Two Decades Rebranding Things as "Cloud, Then "AI", Now "XBox" and "Quantum"
"AI" bubble pops, Microsoft harping about "quantum" already
IBM Allegedly Found New Tricks for Silent Layoffs: LPI, Then MIS (Not PIP)
Remember that "Red Hat layoffs" won't be reported after the bluewashing
Links 16/10/2025: Red Lines and Feeding of Microsoft Trolls
Links for the day
MIT as a Propaganda Mill of GAFAM, Paid by GAFAM
"the news" today
Links 16/10/2025: Lies Euphemised as ‘Dueling Versions of Reality’ and Microsoft "Open" "Hey Hi" Resorts to Porn as No Business Model Was Found
Links for the day
The Local Staff Committee Munich (Representation of the EPO's Staff) Explains When Cluster of Pregnancies May Result in Reduced Pay
"...even one week of part-time working is sufficient to reduce the salary you perceive during the entirety of your maternity leave."
Another Black Eye for 'Secure Boot', Microsoft Media Tries to Blame "Linux"
It enables Microsoft to remotely control computers, even computers that don't run Windows and never had any Microsoft software installed
Slopwatch: UbuntuPIT, linuxsecurity.com, and Various Slopfarms in Google News Attacking "Linux"
A new survey of the Web said that the majority of the Web is now slop (that's being said in the news this week)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 15, 2025
IRC logs for Wednesday, October 15, 2025
Links 16/10/2025: Increased Use of Social Control Media Surveillance in US, French Rage Over Pensions
Links for the day