Bonum Certa Men Certa

Post-Alice, the Patent Microcosm is Up in Arms and Scraping the Bottom of the Barrel for Anti-Alice Material

Summary: In search of new ways to justify software patents, those who are in the legal 'industry' seek to twist cases and cherry-pick cases from the lowest possible courts, relying perhaps on lack of research and blind trust in the legal 'industry' with its so-called 'articles' (marketing disguised as news)

IT IS always nice to see the patent microcosm losing its mind over the end of software patents (Alice/Section 101). This new blog post (Carl Oppedahl on Carol Bidwell) shows how procedural issues creep in and drive them nuts, too. In fact, one patent maximalist asked: "Why would @uspto be trusted to make it easier for prosecutors? Or, practitioners in general?"



"This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. ""Their job or task is not to make it easier for prosecutors," I told him. It developed into a conversation. This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. If they apply for a monopoly and get rejected, that does not make them an unhappy customer but a failing applicant. People who go to job interviews, for instance, are not customers and there's no customer service when they get rejected/declined. Anyway, from the Oppedahl/Bidwell post:

An Examiner made such an objection a couple of days ago in one of our cases. We will be able to force the Examiner to withdraw the objection.

Before explaining why it is that we will have no difficulty forcing the Examiner to withdraw this objection, let’s ask ourselves how such an objection could even arise.

The requirement that the Abstract commence on a separate sheet was imposed over a decade ago, and it was for a very simple purpose — to make life easier for Reed Tech (a LexisNexis company), which is the government contractor that carries out the printing of US patents. Almost every detail of the way that you and I file and amend US patent applications is spelled out in USPTO rules that are designed to make life easier for Reed Tech.

[...]

Of course this Abstract in our case, in the form in which the USPTO computer system obtained it from the WIPO computer system, was on the front page of a published PCT application. So it was not on a page by itself. It shared a page with lots of other things such as the title and the names of the inventors.


What matters is the substance of patent applications. It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job). But this post isn't about EPO. We just want to highlight similarities.

"It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job)."Either way, there's danger that USPTO examiners now rush to reject patents not based on prior art etc. (which takes time and effort to find and ascertain) but based on glaring technical errors in the structure. This way examiners can fake supposed 'production' or 'productivity' (when the yardstick is number of patents processed, i.e. accepted/rejected). We certainly hope that USPTO administration staff pays attention to these things.

It has meanwhile emerged that Watchtroll moved from endless PTAB and Alice bashing to webinars in which Watchtroll was/will be promoting UPC and software patents. These people strive for a "grant everything" policy (wherein all decisions are to be made in courts where they make plenty of money through legal bills). It is appalling when they also meddle in Europe. The other day Watchtroll wrote about the Court of Appeals for the Federal Circuit (CAFC), noting that CAFC may have touched Alice again. The headline is somewhat misleading; look at the body:

In Inventor Holdings the Federal Circuit affirmed an award of attorneys fees under Octane Fitness against a business method patentee who filed suit before the Supreme Court decided Alice. The Federal Circuit affirmed the award because Inventor Holdings did not “reassess” its case in light of Alice and at that point decide sua sponte that its claims were “objectively without merit”. This was done despite the fact that business methods are not unpatentable per se and, as Inventor Holdings itself argued, it was still reasonable post-Alice to believe its patent covered eligible material because Section 101 “was, and is, an evolving area of law and… the €§ 101 inquiry in this case was therefore difficult.”

But in so holding, the Federal Circuit also provided some very useful language that could be used by patent prosecutors and litigators alike in an attempt to overcome Alice:


So it's basically some vague loophole about a case which actually predates Alice. CAFC has consistently rejected software patents throughout the year, so Watchtroll scrapes the bottom of the barrel in search of some "good news" (for patent predators like Watchtroll).

"They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all)."Other elements of the patent microcosm have meanwhile looked at district courts (lower than CAFC) for some "good news" and found the District of Minnesota denying Alice as applicable/relevant. To quote: "The District of Minnesota recently issued its fourth post-Alice decision, this time addressing the question of patent subject matter eligibility for a check processing patent. After analyzing a representative claim using the two-step Alice framework, the Honorable Susan Richard Nelson held that the claims were not directed to an abstract idea, and even if they were, provided an inventive concept. The Court also granted summary judgment in favor of Solutran, Inc. (Solutran), finding that U.S. Bancorp’s Electronic Check Service system infringed the asserted patent. For businesses that rely on check processing technology, the decision and breadth of the patent could have significant implications."

It's very rare for US courts (especially like CAFC or higher ones) to not accept Alice, so when it happens the patent microcosm amplifies it. The headlines can sometimes be misleading. They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all).

Recent Techrights' Posts

Alyssa Rosenzweig's LibrePlanet Talk About Freeing the Apple GPU
Alyssa Rosenzweig is the graphics witch behind the reverse-engineered drivers for the Apple GPU. She previously led Panfrost, the free drivers for Arm Mali GPUs powering devices like the Pinebook Pro. She graduated in 2023 with a Computer Science degree from the University of Toronto and now writes free software full-time.
Links 30/06/2024: LLMs Under Fire and Dictatorship of the Old
Links for the day
[Meme] Walking Outside the Guardrails of the Walled Gardens Built by Monopolies
So-called "advertiser-unfriendly" material was never a problem for Wikileaks
This War Crime Footage, Nothing Political Per Se, Is What They Made Julian Assange Plead Guilty To (War Criminals Not Convicted, Only Those Who Expose Them)
Wikileaks' Julian Assange: Exposing the US Military Crimes
20 Years Passed, Let's Go Even Faster Now
We are hoping to bring more original stories
Windows Lost Almost 92% Market Share in Egypt
From over 99% to just over 7%
 
Getting Rid of Microsoft Does Not Go Far Enough
Microsoft already has many problems. One day Microsoft won't exist anymore. But that does not guarantee users' freedom.
Destination 'Five Percent'
We reckon GNU/Linux can break the 5% barrier some time by the end of this year, even without counting Chromebooks
A Crisis of Online Journalism
Almost a week ago a journalist was forced to plead guilty for an act of journalism
Germany One of Many Countries Where Microsoft's Bing Lost Market Share After All That LLM Nonsense (Bing Chat and Further Rebrands/Renames)
openai.com traffic plunged 60% last month
Microsoft’s Latest Antitrust Scrutiny
4 new stories
Microsoft Layoffs, Mass Plagiarism, and More
outrage included
GNU/Linux Climbed 0.25% This Month (in statCounter)
Around midday on Tuesday we'll start seeing preliminary data for July
Ilya Gulko Introduces Pollyanna
"Pollyanna is a web framework that makes it easy to create your own libre social space, such as a social network or blog."
'FSFE': Underage Labour, GAFAM Fronting, and Identity Theft to Undermine the FSF's Current Fundraiser
looking to raise funds at the same time as the FSF
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 29, 2024
IRC logs for Saturday, June 29, 2024
Links 29/06/2024: Astronauts at Risk, Ukraine Updates
Links for the day
Fedora and Red Hat Leftovers
mostly redhat.com
Microsoft is Now Googlebombing or Spamming 'Open Source' and 'Linux' to Promote Proprietary Surveillance, Azure
Notice the title and the image, what's being promoted etc.
Seychelles: GNU/Linux Doing OK
Seychelles cannot be considered poor
Gemini Protocol Isn't Even Remotely "Dead"
"Lupa knows of 505,000 (half a million!) working Gemini URLs at present, up from about 425,000 this time last year"
About 10 New Free Software Foundation (FSF) Members Per Day
The total changed from 46 to 47 while typing the article
Vista 11 Adoption Unusually Low in Germany and It's Going Down, Not Up
This is not happening only in Germany
Kevin Korte on Computers Being Allowed to Make Decisions Based on Cryptic Algorithms and Proprietary/Secret Data
It uses buzzwords where none are needed
[Meme] Garbage In, Garbage Out (linuxsecurity.com)
It is neither Linux nor security, just chatbot-generated slop
Microsoft-Invaded CISA Spreads Anti-Free Software FUD (as If Proprietary Software Has No Memory Safety Issues), Brittany Day Uses Chatbots to Amplify and Permutate the Microsoft FUD
linuxsecurity.com became an anti-Linux spam site
Microsoft Laying Off Staff in an Act of Retaliation and Union-Busting
retaliatory layoffs at Microsoft
Gemini Links 29/06/2024: Content Drowning in 'Goo' and LLM Slop
Links for the day
In Ecuador, GNU/Linux Adoption Surged From Under 1% to Over 4% in About 3 Years
Not even counting Chromebooks
LibrePlanet: Cultivating Backups (of Recordings)
an appeal to recover some of these talks
Microsoft/Windows Machines Are Turned Off (or Windows Deleted/Decommissioned) in Web Servers, as the "Market Share" Collapse Continues
Taking full history into account, this is a decrease of over 90% in some cases
Corwin Brust Hosting Freedom: A Behind-the-scenes Tour With the GNU Savannah Hackers
"the "smiling faces" behind it."
Android at 90% or More in Chad
Windows below 2%
David Wilson: Cultivating a Welcoming Free Software Community That Lasts
"a feeling of shared ownership for all users."
Julian Assange Might Continue Wikileaks, But Certainly Not Yet (Recovery Time Needed)
And probably at a symbolic capacity only
Bringing in 12 Santas and Taking 13 Out (Old Interview With Julian Assange)
Julian Assange's life inside the Ecuadorian embassy
Neil Plotnick on GNU/Linux in the High School Classroom
uploaded to the LibrePlanet instance of MediaGoblin
Asia Appears to be Fastest to Adopt GNU/Linux
the home of a considerable majority of the world's population
Alexandre Oliva's LibrePlanet 2024 Talk About "Software Enshittification"
in spite of technical difficulties encountered while recording
What They Used to Do With Mono They Now Do With Systemd (Lower and Deeper Down Than Userspace)
Now we have a project started primarily by Red Hat (and managed by Microsoft GitHub, which is proprietary) being managed by Microsoft and primarily serving Microsoft and IBM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 28, 2024
IRC logs for Friday, June 28, 2024
Links 28/06/2024: Kangaroo Courts and Patents Spam, EFF Still Fighting for CPC's TikTok (a Digital Weapon)
Links for the day
Links 28/06/2024: Overton window and Polarization
Links for the day
[Meme] In 50 Years...
Microsoft's Vista 11 will take 50 years to be fully adopted
Only About 1 in 8 Russian Windows Users is Using Vista 11
it looks like over the past 12 months Vista 11 hardly grew and it remains very low at around 12% of Windows usage in Russia
Links 28/06/2024: More Attacks on the Press, More Censorship in Russia
Links for the day
Gemini Links 28/06/2024: Christmas Prematurely, Self-hosting
Links for the day
IBM: So Long, Suckers. Your Free OS is Now Proprietary. Pay IBM or Else.
almost exactly a year after turning RHEL into proprietary software
Vista 11 is Doomed and Despite Lack of Adoption Microsoft Already Speaks of Vapourware ("12")
"Microsoft has pulled a Windows 11 update after users reported boot loops and startup failures."
ChromeOS Reaches Highest Share in Years at the World's Most Populous Nation, Windows Now at All-Time Low of 13%
We're talking about India today
[Video] "It Is Incredible That Julian Assange Survives"
There was a positive and mutual relationship between Wikileaks and Dr Jill Stein
Never Assume That Because the Law Exists the Powerful Will Follow the Law
Who's going to hold them accountable now?
Nearly a Month Has Passed and Nobody at the Debian Project Even Attempted to Explain What Seems Like Back-dooring of Debian (and Hundreds of Distros That Are Debian-Derived)
I can cynically guess that only matters when a user with a Chinese name does it
[Video] Julian Assange Explains Wikileaks' Logistics
predating indefinite detention
IBM Was Never the "Good Guy", Just a Self-Serving and Opportunistic Money- and Power-Hungry Monopolist, Living Off of Taxpayers' Money (Government Contracts)
The Nazi Party of Germany was its second-biggest client at one point and now it's looking to profit from the work of slaves
"I Hated Working at IBM. They Were the Most Unfriendly People."
Don't forget what Watson the son did to a poor woman on a plane
State of the News (and Depletion of Journalism Online, Not Just Offline)
Newspapers are not coming back and the Web is not coming back either
GNU/Linux Consolidates in North America
Android rising a lot this year, too
[Meme] More Monopolies Granted While Patent Examiners Die (Overworking for Less Compensation)
Work more; Get less
Staff Union of the EPO (SUEPO) is Taking the New Pension Scheme (NPS) to an International Tribunal (ILOAT)
SUEPO wants more EPO staff to participate in collective action
Stella Assange and the Legal Team Speak to the Media a Day After WikiLeaks Founder Julian Assange Arrives in Australia
Published yesterday by a number of mainstream publishers
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 27, 2024
IRC logs for Thursday, June 27, 2024
RIP Daniel Bristot de Oliveira, Red Hat death
Reprinted with permission from Daniel Pocock