Bonum Certa Men Certa

The Patent 'Industry' Likes to Mention Berkheimer and Aatrix to Give the Mere Impression of Section 101/Alice Weakness

Summary: Contrary to what patent maximalists keep saying about Berkheimer and Aatrix (two decisions of the Federal Circuit from earlier this month, both dealing with Alice-type challenges), neither actually changed anything in any substantial way

ALL SORTS of USPTO-granted software patents are facing extinction. We'll soon write about PTAB, giving some examples of invalidations, but one need not look as far as PTAB.



Michael SteinMichael Stein, an IP Counsel from Seattle (makes one wonder if a former Microsoft executive or something else; his page does not disclose clients or past employers), isn't too happy about the status quo. Days ago he wrote: "It's a logic flaw in assessing patent eligibility. Take a computer readable medium, such as a hard disk. Claim the CRM and it would rightly be rejected for lack of novelty but not under 101. Add instructions for a SW process, it becomes ineligible under 101. Doesn't make sense."

"The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted."The computer is irrelevant to it. Algorithms are algorithms and they're abstract. The above clearly misframes what Section 101/Alice is about (by lumping that together with hardware). In the meantime, there's also similar spin from other law firms. As we last noted yesterday, they habitually distort and misframe Berkheimer, making it about Section 101/Alice even though that's now quite the case. Yesterday we also wrote about Aatrix, a newer case which is already being distorted similarly. The reason we wrote about these 4 times already is that falsehoods are being propagated and these need to be rebutted.

A few days ago Bejin Bieneman wrote:

Considering the patent-eligibility of claims directed to archiving digital assets, the Federal Circuit has affirmed a district court decision invalidating an independent claim under 35 USC €§ 101 and Alice, while vacating and remanding a judgment that certain dependent claims were patent-ineligible. Berkheimer v. HP, Inc., No. 2017-1437 (Fed. Cir. Feb 8, 2017) (precedential) (opinion by Judge Moore, joined by Judges Taranto and Stoll). Along the way, the court chastised the District Court for using independent claim 1 of US Patent No. 7,447,713 as representative, while ignoring the patent owner’s separate arguments concerning dependent claims 4-7.


They are partly correct in pointing out what many patent zealots intentionally omit; the Federal Circuit did not repudiate Section 101/Alice at all; au contraire. But some quote miners cherry-picked quotes from that long (almost 20 pages) decision to suit the bogus narrative of PTAB disregarding facts.

"How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal "ammo"?"Berkheimer was also mentioned yesterday by Watchtroll. The title was "Is there a Light at the End of the Alice Tunnel?" as if it's darkness to have Alice. It's another one of those Watchtroll rants about Alice (second from this author in the past week alone) and it starts by stating: "The Federal Circuit explains in Berkheimer and Aatrix that the Federal Rules of Civil Procedure apply to patent eligibility."

Obviously. But what does not follow is the remainder of this dross about Alice being controversial, unclear, or whatever.

As we said yesterday, it's reasonable to predict that in weeks if not months to come lawyers will just name-drop Berkheimer and Aatrix in an effort to vacate perfectly legitimate decisions. What both cases showed wasn't an issue with Alice, which they didn't even challenge or refute. How long before quote miners take out of context yet another decision from the Federal Circuit in an effort to collect legal "ammo"?

Recent Techrights' Posts

Google Has Mass Layoffs (Again), But the Problem is Vastly Larger
started as a rumour about January 2025
Electronic Frontier Foundation Defends Companies That Attack Free Speech Online (Follow the Money)
One might joke that today's EFF has basically adopted the same stance as Donald Trump and has a "warm spot" for BRICS propaganda
 
Early Retirement Age: Linus Torvalds Turns 55 Next Week
Now he's almost eligible for retirement in certain European countries
Gemini Links 22/12/2024: Solstice and IDEs
Links for the day
BetaNews: Microsoft Slop is Your "Latest Technology News"
Paid-for garbage disguised as "journalism"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, December 21, 2024
IRC logs for Saturday, December 21, 2024
Links 21/12/2024: EU on Solidarity with Ukraine, Focus on Illegal and Unconstitutional Patent Court in the EU (UPC)
Links for the day
[Meme] Microsofters at the End of David's Leash
Hand holding the leash. Whose?
Deciphering Matt's Take on WordPress, Which is Under Attack From Microsofters-Funded Aggravator
the money sponsoring the legal attacks on WordPress and on Matt is connected very closely to Microsoft
Gemini Links 21/12/2024: Projections, Dead Web ('Webapps' Replacing Pages), and Presentation of Pi-hole
Links for the day
American Samoa One of the Sovereign States Where Windows Has Fallen Below 1% (and Stays Below It)
the latest data plotted in LibreOffice
[Meme] Brian's Ravioli
An article per minute?
Links 21/12/2024: "Hey Hi" (AI) or LLM Bubble Criticised by Mainstream Media, Oligarchs Try to Control and Shut Down US Government
Links for the day
LLM Slop is Ruining the Media and Ruining the Web, Ignoring the Problem or the Principal Culprits (or the Slop Itself) Is Not Enough
We need to encourage calling out the culprits (till they stop this poor conduct or misconduct)
Christmas FUD From Microsoft, Smearing "SSH" When the Real Issue is Microsoft Windows
And since Microsoft's software contains back doors, only a fool would allow any part of SSH on Microsoft's environments, which should be presumed compromised
Paywalls, Bots, Spam, and Spyware is "Future of the Media" According to UK Press Gazette
"managers want more LLM slop"
On BetaNews Latest Technology News: "We are moderately confident this text was [LLM Chatbot] generated"
The future of newsrooms or another site circling down the drain with spam, slop, or both?
"The Real New Year" is Now
Happy solstice
Microsoft OSI Reads Techrights Closely
Microsoft OSI has also fraudulently attempted to censor Techrights several times over the years
"Warning About IBM's Labor Practices"
IBM is not growing and its revenue is just "borrowed" from companies it is buying; a lot of this revenue gets spent paying the interest on considerable debt
[Meme] The Easier Way to Make Money
With patents...
The Curse (to Microsoft) of the Faroe Islands
The common factor there seems to be Apple
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, December 20, 2024
IRC logs for Friday, December 20, 2024
Gemini Links 21/12/2024: Death of Mike Case, Slow and Sudden End of the Web
Links for the day
Links 20/12/2024: Security Patches, Openwashing by Open Source Initiative, Prison Sentence for Bitcoin Charlatan and Fraud
Links for the day
Another Terrible Month for Microsoft in Web Servers
Consistent downward curve
LLM Slop Disguised as Journalism: The Latest Threat to the Web
A lot of it is to do with proprietary GitHub, i.e. Microsoft
Gemini Links 20/12/2024: Regulation and Implementing Graphics
Links for the day
Links 20/12/2024: Windows Breaks Itself, Mass Layoffs Coming to Google Again (Big Wave)
Links for the day
Microsoft: "Upgrade" to Vista 11 Today, We'll Brick Your Audio and You Cannot Prevent This
Windows Update is obligatory, so...
The Unspeakable National Security Threat: Plasticwares as the New Industrial Standard
Made to last or made to be as cheap as possible? Meritocracy or industrial rat races are everywhere now.
Microsoft's All-Time Lows in Macao and Hong Kong
Microsoft is having a hard time in China, not only for political reasons
[Meme] "It Was Like a Nuclear Winter"
This won't happen again, will it?
If You Know That Hey Hi (AI) is Hype, Then Stop Participating in It
bogus narrative of "Hey Hi (AI) arms race" and "era/age of Hey Hi" and "Hey Hi Revolution"
Bangladesh (Population Close to 200 Million) Sees Highest GNU/Linux Adoption Levels Ever
Microsoft barely has a grip on this country. It used to.
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, December 19, 2024
IRC logs for Thursday, December 19, 2024