Bonum Certa Men Certa

The Patent Microcosm is Spinning Berkheimer Again, Hoping to Compel Politicians to Undermine Section 101 and Promote Software Patents

Patently-O has basically become another Watchtroll

Pulling a Berkheimer



Summary: Dennis Crouch, who has his cards (or pot of gold) with the patent microcosm, steers media towards ludicrous suggestions and misleading headlines; the overall objective is to water down Section 101 and dilute the patent system, bringing rise to more patent litigation (especially with abstract software patents)

THE resurrection of Berkheimer is something we've grown rather tired of; the patent microcosm, seeing that the USPTO is now headed by Iancu, tries to convince him to water down guidelines by citing Berkheimer. As for the courts? Like we've been showing for a couple of months, they barely care about Berkheimer as a precedent. They've just move on basically.

Prominent patent maximalist Dennis Crouch is still trying to 'pull a Berkheimer' to undermine the Patent Trial and Appeal Board (PTAB), Federal Circuit (CAFC) and Section 101. He has been doing that for a long time.

Several days ago he wrote about some case, trying to solicit oppositions:

Now, the Federal Circuit has denied both petitions with opinions by Judges Moore, Lourie, and Reyna. The exact vote was not released, but at least 7 judges voted to deny.

[...]

Clearly Judge Reyna is correct in this aspect of his analysis even if I disagree with his ultimate conclusion that eligibility is purely a question of law.

I would look for Supreme Court petitions in both cases framed along the lines of: pro-patentee Federal Circuit judges seeking to undermine consistent Supreme Court precedent most recently restated in Alice and Mayo.


It's about CAFC and the Section 101 question. They basically don't want to meddle in it, but this has already been spun by lawyers' media. They contaminate information sources.

Judge Alan Lourie said: “Section 101 issues certainly require attention beyond the power of this court” (that's all).

Open for interpretation?

Over at Law.com, for example, Scott Graham wrote:

The U.S. Supreme Court’s Alice opinion on patent eligibility got a formal haircut Thursday.

The U.S. Court of Appeals for the Federal Circuit announced that it’s sticking with two February decisions that limit the kinds of patent cases that can be decided early in litigation on a Section 101 motion.

Only one of the court’s 12 active judges dissented from the denial of en banc review in Berkheimer v. HP and Aatrix Software v. Green Shades Software, though two others also called on Congress or the Supreme Court to intervene.



They're just nitpicking dissents and words (like Crouch). These patent radicals have always twisted some words in an effort to bring software patents back to the US. What the judges said does not match the headlines at all. Here's Crouch seemingly quoting Alan Lourie as saying "Call for Congress to Act" (there was no such call!). To quote:

As part of the court’s en banc denial in Berkheimer v. Hp Inc., 2018 U.S. App. LEXIS 14388 (Fed. Cir. 2018), Judges Lourie and Newman joined together in an interesting concurring opinion that argues for some higher power to revisit the doctrine of patent eligibility to provide clarification and policy guidance.

[...]

For a federal appellate court, there are typically two such “higher authority” mechanisms for altering the law: (1) Supreme Court reinterpretations and (2) changes in the law itself. In the opinion, Judge Lourie rules out a reinterpretation by the Supreme Court as insufficient — thus leaving us with changing of the law.


Well, “higher authority” does not mean Congress and Crouch -- like a little child -- has already begun to play with Google in an effort to find artistic interpretations for that term. It does not mean Congress. Ryan Davis, over at Law 360, followed that up by writing:

The full Federal Circuit voted Thursday not to rehear two cases seen as making it harder to invalidate patents for claiming ineligible material under the U.S. Supreme Court’s Alice test, saying the holdings that patent eligibility can involve factual issues follow established litigation rules.

The court, with only one judge dissenting, denied petitions for en banc rehearing by HP Inc. and Green Shades Software Inc. in two separate cases that shook up patent law when they were decided within days of each other in February.


So that's about it. Nobody said Congress should intervene or anything like that. It's pure lobbying by Crouch and his ilk. His blog colleague, David Hricik, has just posted for someone else this attack on Section 101 because the patent radicals of Patently-O (see the nature of the comments there) don't accept courts' judgements. Instead, as in this latest piece, they smear Justices as "judicial activism" (yes, activism! This is right out of Donald Trump's playbook!) for basically applying the law, assuring patents validity and quality. They're becoming like another Watchtroll now. To quote:

Over on the main page, Dennis has pointed out that a cert petition including citations to my posts here about why Section 101 is not a “defense” to infringement, and to the recent CAFC cases about why 101 includes factual inquiries. This rant is about those issues.

[...]

Where the judicial activism of the Supreme Court has put our country is is in a dire place. We are in a time when innovation is king. China has more patents pending than the U.S. Around the country, I have heard executives from all types of industry state that our system has made patenting of dubious value. The data shows that the Supreme Court’s rampant activist approach — undertaken perhaps in a noble effort to get rid of some (too many) stupid patents (and combined with IPRs) — has made our patent system weak, eliminated key incentives to innovate, and, most fundamentally, ignored the changes Congress made back in 1946 to stop this nonsense.


Patently-O is proving to have become a rather toxic site with an agenda. Founded by a scholar, it certainly seems to be just an "activism" site of the patent microcosm, very much akin to Watchtroll.

Recent Techrights' Posts

Approaching 10,000 Articles/Pages Since Going Static
Trying to silence or derail the site was always a dumb strategy
Microsoft is Shedding Off Loads of Staff and That Can be Dangerous Too
Working for Microsoft is a choice; nobody forces you to do it
Richard Stallman and the Unix Philosophy
When asked about systemd people must remember that RMS speaks as an active Board member of the FSF and also the founder of the FSF
Get Rid of Back Doors, Don't Obsess Over Bounties and Other Corporate PR Stunts (or Needless Reboot Rituals)
Security as a term has mostly lost its meaning due to repeated misuse for many years
Serial Sloppers Are Killing the Web (They Probably Don't Care, Either)
Slop is a disease on the Web
IBM's Debt Ballooned by 8.5 Billion Dollars in Just 3 Months!
Hallmark of a company in a state of disarray, trying to spend its way out of trouble
Big Trouble in GNOME
even GNOME people admit the CoC went wrong
 
In defence of JD Vance, death of Pope Francis
Reprinted with permission from Daniel Pocock
Three Years in Prison for Disney Employee’s ‘Menu Hacking’: The Economic Fallout of Digital Menus
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, April 25, 2025
IRC logs for Friday, April 25, 2025
Links 25/04/2025: Slop Fatigue and Patent Judges Flocking to Fake, Unconstitutional and Illegal Kangaroo Court (UPC, Captured 'Justice')
Links for the day
Gemini Links 25/04/2025: Night Manager and Devuan in Hosting
Links for the day
Windows Falls to New Lows in Nicaragua, Now Below a Quarter (It Used to be Almost 100%)
Another all-time low for Windows
The Cost (to Linux) of LLM Slop
Slop 'artists' like Fagioli are far from harmless
Links 25/04/2025: Ubisoft Spyware, Hegseth Fails at Tech on Every Level
Links for the day
Gemini Links 25/04/2025: Food Forest Update and Facebook Destroying the Net
Links for the day
Streaming Apps Are “Investor Fraud” That Kills the Planet
Reprinted with permission from Ryan Farmer
Things Get Increasingly Nasty at Microsoft Ahead of the Fake Results and May's Mass Layoffs Wave
They try to get people to 'resign' so that they won't count as layoffs and the company's 'wellbeing' will seem better
Slopping the Trough: Disney Plus Loses Billions and the Decline of Physical Media in America
Reprinted with permission from Ryan Farmer
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, April 24, 2025
IRC logs for Thursday, April 24, 2025
Links 24/04/2025: GAFAM Problems and No Peace (or Ceasefire) in Sight
Links for the day
Slopfarms on the Web Almost Always Generate Anti-Linux FUD When They Produce "Linux" Output
Welcome to the dying Web
Richard Stallman's Oxford Talk Has Just Ended, Here Are Some Photos
he might hop over to another European country
Gemini Links 24/04/2025: Birthday and Good Work of Academia in Esotericism
Links for the day
Links 24/04/2025: EU fines Apple and Facebook, Another Microsoft GitHub Security Blunder
Links for the day
New Article Explains How the GPL Came About and WordPress Having Copyleft Obligations
Having been involved in the WordPress development community since almost the beginning, I know why it chose the GPL and how it restricts abuse by Automattic
IBM Gained Almost 6 Billion Dollars in "Goodwill" Value in Just 3 Months, According to IBM
Congrats to the management!
In Belarus, Yandex is Now Measured as 50 Times More 'Popular' (by Usage) Than Microsoft
Yandex continues to gain, whereas Bing cannot even register at 1%. Last month it was registered or measured at a measly 0.65%.
IBM Cannot Lie to Shareholders Anymore
"I would not be surprised if we see a layoff every quarter this year."
Dr Richard Stallman (RMS) Gives Talk in Oxford University in 4 Hours
If you live nearby, go there (it's free as in gratis)
Using a Law Firm's Licence to Exercise Politics Through Frivolous SLAPPs and Nastygrams (to Silence People, Remove Pages, Demand Fake or Forced 'Apologies')
Things must be getting really bad when lawyers act for raving antisemites
We're Working to Make Full-Site Search Available
This site has over 1,000 'wiki' pages, many thousands of documents, several thousands of videos, and about 50,000 blog posts or articles. We need to make them easier to find/navigate.
Links 24/04/2025: IBM Loses Many Contracts, Intel to Lay Off Over 20% (Not Counting Those Who Leave 'Voluntarily')
Links for the day
Richard Stallman Can Explain to Oxford Artificial Intelligence Society Why LLM Slop is Not Artificial Intelligence and Why It Hurts Society
another 'crop' of LLM slop that damages GNU/Linux and facts
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, April 23, 2025
IRC logs for Wednesday, April 23, 2025