Bonum Certa Men Certa

The Patent Litigation 'Industry' Celebrates Outcome of Berkheimer v HP, But It's Not About ۤ 101

The decision concerns presentation or availability of evidence (ۤ 101 being more of a 'footnote')

Berkheimer v HP



Summary: A case which isn't inherently about ۤ 101 but about the evidence backing rejection of a patent (see above) is being spun by patent maximalists, who also resort to bashing of judges, academics, and Justices (Supreme Court) in the process

THE patent microcosm isn't used to being publicly challenged. It is not accustomed to refutation. It just pays money to dominate the news feeds and spread its delusional vision. The EPO does this in Europe (because Battistelli has no qualm about corrupting media), but in the US it's not the USPTO but the patent microcosm which does all this. This post is a quick debunking.

"It's not applicable just to ۤ 101 and there is nothing extraordinary about it."A lot of it started when Patently-O's Dennis Crouch wrote about "Underlying Questions of Fact", quoting the following passage: "While patent eligibility is ultimately a question of law, the district court erred in concluding there are no underlying factual questions to the ۤ 101 inquiry. Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination."

So that's about it. It's not applicable just to ۤ 101 and there is nothing extraordinary about it. Here is the original decision rather than the 'twist' from the patent microcosm. Michael Loney (part of the patent microcosm's media) wrote: "Important statement from the Federal Circuit on the factual underpinnings of the eligibility analysis, in Berkheimer v HP..."

"The Federal Circuit is not the US Supreme Court, so whether that "sets new rules for fact finding" remains to be seen (in practice)."Important statement or important for the patent microcosm statement? Those two things aren't the same.

As one patent-centric person put it: "FedCir vacates summary judgment of ineligibility on dependent claims due to representative treatment of independent. Court says eligibility is a question of fact. So... Rule 132 decs to traverse 101 rejections?"

"They maliciously imply that the courts have thus far rejected facts. That's how patent trolls and extremists prefer to think of it."Professor Risch wrote about the same decision that the "Federal Circuit sets new rules for fact finding in patentable subject matter determinations. Underlying determinations of conventionality must be supported. I see this one going en banc."

The Federal Circuit is not the US Supreme Court, so whether that "sets new rules for fact finding" remains to be seen (in practice). A patent maximalist wrote: "The Fed. Cir. Held Today that the PTAB Does Indeed Need Facts, Not Just Official Notice, to Make a 101 Case" (he links to a site of a literal patent troll).

"Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB."Notice the above headline. They maliciously imply that the courts have thus far rejected facts. That's how patent trolls and extremists prefer to think of it.

A different patent-centric person (more balanced) said: "Berkheimer v HP FedCir 2/8/18 affirms cl 1 not 101 eligible BUT vacates SJ re cls 4-7; fact q's exist under Alice step 2. "Whether something is well-understood, routine, and conventional to a skilled artisan at the time of the patent is a factual determination." Other cls indef."

It's all about that passage quoted in Patently-O. Another patent-centric person called it a "[m]omentous decision." He said: "For the first time, FedCir vacated a SJ of patent ineligibility on ground that there is a genuine dispute of material fact underlying 101 determination. And, opinion holds that resolution requires meeting the clear and convincing standard for the defendant."

Then came a trolls-connected crank who likes to bash professors whom he does not agree with. He is attacking Professor Lemley again: "If Lemley were any more transparent he'd be Saran Wrap Every "principle," every "well reasoned argument" spouted from his fraudulent lips about evils/benefits of patents is a farce, a charade whose only purpose is to generate more billings for firm by introducing uncertainty [...] opinion holds that resolution requires meeting the clear and convincing standard for the defendant" Im embarrassed to say I didn't even notice how important that is... so far the panels have been ducking the SOP, and this is also extremely useful [...] Listening to oral argument in Berkheimer case: http://oralarguments.cafc.uscourts.gov/default.aspx?fl=2017-1437.mp3 … Apparent that Moore, Stoll, think support in specification for technical advantage can create dispute of fact to defeat 101 - pray for them on your panel if you have a #patent Alice rejection case!"

"And if that's not bad enough (bashing academics you don't agree with and claiming they're not professors even though they are), then came bashing of SCOTUS..."Then came (separately from the above) the patent trolls themselves, attacking academics like Brian J. Love and his colleagues, who has just released this new paper about PTAB. The patent troll wrote: "How am I to take this "scholarly" paper seriously from a (co) author, an executive for Unified Patents & whose firm has a PTAB institution rate 33 points BELOW the industry average? And he knows "low quality patents"?"

The troll's friend (who wrote pieces against the EFF for the troll's site) dished some more dirt: "inter partes review is, as Congress intended, eliminating patents that appear to be of relatively low quality" papers.ssrn.com/sol3/papers.cf… No, IPR=rigged game where patent owner given 1 yr to defend vs infringer who has 6 mo head start, like giving runner 50m head start in 100m race"

"What pretty much all the above have in common is that they make it about ۤ 101, striving to almost cast it "irrelevant" and in need of deprecation."And if that's not bad enough (bashing academics you don't agree with and claiming they're not professors even though they are), then came bashing of SCOTUS: "don't know if there were method claims in those patents, but to some extent, the attorney was 100% right; if you're going to say use of one physical generic machine (computer) can be abstract, why can't use of another physical machine be similar abstract? SCOTUS gave us this mess..."

No, SCOTUS belatedly (decades late) dealt with the issue and did the right thing. Sure, patent trolls aren't happy about it, but nobody is happy about patent trolls, either.

He's basically ranting about other things, still upset that PTAB eliminates many software patents. What we have here is a proponent of lawless patent trolls who use bogus patents (which PTAB tackles) for blackmail. There have been all sorts of other attacks on PTAB from his account this past week, e.g. [1, 2, 3], not to mention veiled advocacy of software patents. His online friend was all over Berkheimer v HP [1, 2], as well as another precedential new decision. What pretty much all the above have in common is that they make it about ۤ 101, striving to almost cast it "irrelevant" and in need of deprecation.

"The Internet can oftentimes be like an echo chamber, especially so-called 'social media', so patent maximalists are likely exposed only to voices to people who already agree with them."Go back to the source from the Court of Appeals for the Federal Circuit (CAFC) (we have made this local copy, it's 17 pages long, with ۤ 101 mentioned about a dozen times, i.e. less than once per page) and read what was actually said. The Internet can oftentimes be like an echo chamber, especially so-called 'social media', so patent maximalists are likely exposed only to voices to people who already agree with them.

Recent Techrights' Posts

All the Red Flags in New Linux Foundation Report
How telling...
[Meme] Shooting the Messenger
"you needn't refute the message, just take out the messengers"
Software Freedom Conservancy (SFC) Associate Sued Us for Publishing Perfectly Accurate Article About SFC; We Sued Them for Harassment
SFC and its associates aren't nice people
Fantastic Journalism by Brian Fagioli
A lot of today's Web, even "news" sites, is spam
The Free Software Foundation (FSF) Has Raised More Than Three Times More Money Than the Software Freedom Conservancy (SFC), Which Mostly Gets Money From Corporations, Including Microsoft
Do not donate any money to copycat organisations. It's worse than money down the river because your money might get spent attacking and even defaming the originals.
 
In France, Android Skyrockets to 52%, Windows Falls to 26%
even in rich countries across Europe Windows is rapidly losing "market share"
When News Sites Become Shopping Catalogues Disguised as 'Reviews' or 'Articles'
Sometimes Fagioli uses HEY HI (AI, LLMs actually) to make 'articles' about HEY HI
Three Months
Next week on Tuesday our sister site turns 20.5
[Meme] Hit and Run with SLAPP
Microsoft staff versus Techrights
[Meme] When You Go Against Corporate Front Groups and Shills of Moneyed Interests (EDRi is Microsoft-Compromised Now)
The "golden rule" is, follow the gold
The Register Exposed Many IBM Scandals, Lawsuits, and Secret Layoffs. Now IBM Pays The Register.
Hush money?
IBM Told the Media the Secret Mass Layoffs Would Carry on Till End of November, But They Still Happen This Month
"My team of 9 people had 4 regulars and 5 contractors. All contractors gone."
Links 06/12/2024: Promotion of Fake and Illegal Patent 'Court' (UPC), South Korean Strikes, and More Bailouts at Taxpayers' Expense
Links for the day
Gemini Links 06/12/2024: Shrinkflation and Working at Google
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 05, 2024
IRC logs for Thursday, December 05, 2024
Techrights Does Not Forget
Techrights has many anti-censorship mechanisms
Windows Has Fallen to All-Time Low in India
In India, only about 1 in 8 Web requests comes from Windows
Microsoft Criminals: Law Enforcement is the Real Problem
deflecting the issue and resorting to projection
[Meme] They Dropped the L (Libre and Law)
SFLC, could I borrow 75% of your letters?
Companies That the Software Freedom Conservancy (SFC) Will Censor the Community for, Using Their Very Large CoC
also exploiting poor (and sexually abused) women from eastern Europe
Software Freedom Conservancy (SFC) Has Asked a Blogger to Delete This Page About the SFC, So We Reproduce It in Full Here
Censored article
Increasing Productivity With Less Hardware, Little Power, and Fewer CPU Cycles (and Far Less Digital Waste in General)
A lot of people who glance at our PCs (as they visit us) act a bit baffled, as much of what we're using is a bunch of terminals and some text editors
Gemini Protocol Keeps Getting Better (Less and Less Reliance on Centralised Certificate Authorities)
Reliable systems do not depend on third parties, only themselves
Why We Moved to Perl and Dumped PHP Last Year
Elongating the lifetime of the underlying stack
Links 05/12/2024: Explaining the South Korea Chaos and French PM Barnier's Government Already Disintegrating
Links for the day
Gemini Links 05/12/2024: Domain Changes, Griping With Haskell
Links for the day
Links 05/12/2024: Mass Layoffs at Microsoft's PR (Bribery of Media) Agency, UnitedHealthcare CEO Shot Dead
Links for the day
GNU/Linux news for the past day
GNU/Linux news for the past day
IRC Proceedings: Wednesday, December 04, 2024
IRC logs for Wednesday, December 04, 2024
Links 05/12/2024: Formaldehyde and Cancer, US and China Boycotting One Another
Links for the day
Gemini Links 05/12/2024: Hermeticism, Living in the Shell, and More
Links for the day
At the OSI, Microsoft Operative (Funded by Microsoft) Promotes Proprietary Software of Microsoft
The OSI is deeply corrupt. The good news is, it's barely hiding it anymore.
It's FOSS? No, It's SPAM.
Another sellout
Links 04/12/2024: Social Control Media Thoughts, Enrons of 2024, and More
Links for the day
Gemini Links 04/12/2024: Soviet Esotericism, Mikrotik is Awesome, and More
Links for the day
Techrights is Officially an Adult
this site's eighteenth anniversary
Technology: rights or responsibilities? - Part IX
By Dr. Andy Farnell
Many Geeks' Achilles Heel: They Don't Take Computer Breaks
Life can get longer if you stay healthy
[Meme] Silicon Valley's "Successful Businessmen"
Debt is not a currency
Visualising About 0.7 Trillion Dollars of Debt in Supposedly "Successful" Tech Companies
If they're doing so well, how come they borrow so much money (which some would struggle to pay back or never manage to pay back)?
Single-Digit Microsoft: Windows Finally Falls Below 10% in Angola
it's only a matter of time before Windows is down to 5%
Coming Up With Topics to Cover and Issues to Comment on
Socialising is a big part of it
In Asia, Microsoft's Bing Became Smaller Than Yandex and It Shrinks Every Month
How long before Microsoft pulls the plug on Bing?
[Meme] Far From What Was Originally Intended
Makes site about RMS; Deletes his own 'site'
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, December 03, 2024
IRC logs for Tuesday, December 03, 2024
Illuminating Microsoft's Dirty Tactics
Criticising illegal things that Microsoft does can be classified as "Microsoft bashing" or "hatred"
Proof That Drew DeVault Vanished From Mastodon After the RMS Attack Site Was Linked to Him (and People Pointed Out DeVault's Fascination With Animated CP, Drawings of Naked Kids)
We assume he just wanted to vanish from Mastodon
Maybe Bill Gates is Getting Demented Like His Late Father (He Says Things That Are True But He's Not Supposed to Say in Public)
It happened in a podcast with Reid Hoffman
We've Clearly Struck a Nerve
Microsofters and Microsoft proxies have meanwhile lost their temper