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

[Meme] Clergy of GNU/Linux (Corporations Like IBM)
Volunteers as powerless "followers" of companies that "harvest" their labour
 
Taking a Break From Paid Promotion of the Illegal, Unconstitutional Kangaroo Court for Patents (UPC)
JUVE returns to its 'roots'?
FSFE admits losing funds from bequest by insulting and ignoring Fellowship representative
Reprinted with permission from Daniel Pocock
Gemini Links 29/02/2024: Raspberry Pi Incus Cluster and Aya 0.5.0 Coming Soon
Links for the day
Links 29/02/2024: Layoffs at Apple, Expedia, and Electronic Arts
Links for the day
Gemini Links 29/02/2024: Web Enshittification and Firefox user-agents
Links for the day
Spiked Piece/Censoreed Piece: 'Microsoft Copilot is a gimmick', says top CIO
Issues relate to connectivity and cost
Enrico Zini, Mattia Rizzolo, Plagiarism & Debian
Reprinted with permission from Daniel Pocock
There Will Be Lots More Apple Layoffs (Already Years in the Making)
The corporate media still tries to shape the narrative to prevent panic or delay market hysteria
Latest SUEPO (Staff Union of EPO) Report For The Hague Reveals EPO Does Not Obey Court Orders, Refuses to Allow Workers to Freely Talk to One Another
working in a place where communication itself is restricted
[Meme] The Oppression Will Continue Until EPO 'Quality' Improves
wonder why EPO morale is so low?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, February 28, 2024
IRC logs for Wednesday, February 28, 2024
Outreachy, GSoC-mentors & Debian-Private may soon become public records in federal court
Reprinted with permission from Daniel Pocock
Links 28/02/2024: Many War Updates and Censorship
Links for the day
Gemini Links 28/02/2024: Social Control Media Notifications and Gemini Protocol Extended
Links for the day
Links 28/02/2024: Microsoft the Plagiarist is Projecting, Food Sector Adopts Surge Pricing
Links for the day
Helping Microsoft 'Hijack' Developers (to Make Them Work for Microsoft, Not the Competition)
VS Code is proprietary spyware of Microsoft. Jack Wallen keeps promoting its use.
Gemini Links 28/02/2024: Groupthink and the 'Problem' With Linux
Links for the day
Android Rising (Windows Down to All-Time Lows, Internationally)
This month was a bloodbath for Microsoft
HexChat Looks for Successors to Keep IRC Growing
IRC is far from dead
[Meme] Just Make Him Happy
Y U no produce more monopolies?
End of a Long February
top 10 posts
[Meme] The EPO's Relationship With Patent Examiners
Nobody is "safe"
New Pension Scheme (NPS) at the European Patent Office Explained at the General Assembly
Investing in the future, or...
Donald Trump & FSFE Matthias Kirschner election denial
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, February 27, 2024
IRC logs for Tuesday, February 27, 2024