Bonum Certa Men Certa

Still 'Pulling a Berkheimer' Almost 4 Months Down the Line

R.I.P.



Summary: Refusing to let go or leave behind an opportunity to bash patent invalidations, the patent microcosm just keeps bringing up Berkheimer v HP ad infinitum

When the Federal Circuit delivered a judgment on Berkheimer the Patent Trial and Appeal Board (PTAB) did not seem to mind as much as the patent extremists minded; Berkheimer just wasn't a very major case, so Iancu's comments revealed whose side he was on. Watchtroll says that the "USPTO asks Federal Circuit to Vacate, Remand 101 Case to Board in Light of Berkheimer," but as we noted earlier today (and will show later today), this is the exception rather than the norm. They're cherry-picking. Berkheimer is very rarely brought up in today's patent cases (rulings/opinions/determinations/judgments/arguments).

A week and a half ago (on May 31st) there was a case related to this. Dechert LLP was trying to 'pull a Berkheimer' (we say 'pull', but they say things like "Berkheimer effect") in order to shed uncertainty and doubt about many decisions to invalidate patents at the Patent Trial and Appeal Board as well as the Federal Circuit. From their summary:

The United States Court of Appeals for the Federal Circuit refused rehearing en banc of two significant decisions regarding patent-eligibility under €§ 101 (Aatrix and Berkheimer) on May 31, with a majority of active judges on the court affirming that the patent-eligibility inquiry, though a question of law, implicates subsidiary questions of fact. The effect of these cases will be to make it substantially more difficult to invalidate patents as being directed to patent ineligible abstract ideas or natural laws before trial. There was substantial uncertainty as to whether the earlier panel decisions would be adopted by the full Federal Circuit, but that uncertainty has now been partly resolved.


As we showed last weekend, they had explicitly expressed reluctance to deal with that case/issue any further. Berkheimer is just some perceived 'lifeline' or 'rope' to patent maximalists, such as the anti-PTAB site Anticipat. It mentioned Berkheimer 4 days ago when it said:

Since the two weeks since we predicted that the PTAB would start to dramatically change its outcomes of rejections under Section 101, we have seen no such change. Since then, recap emails have mostly shown affirmances (only 7 reversals of 86 total Section 101 decisions = 8% reversal rate). But a decision in yesterday’s recap email shows precisely the kind of rejection analysis that is expected to become more mainstream at the PTAB.

Ex Parte Galloway et al (PTAB May 22, 2018) reversed the judicial exception rejection under Section 101 because of a lack of evidence. The panel, consisting of Donald E. Adams, Demetra J. Mills, and Ulrike W. Jenks, found that the Examiner had not provided evidence to support a prima facie case of patent ineligible subject matter.

The panel cited to Berkheimer in support of an apparent defective step 2 analysis: “The Examiner has not established with appropriate factual evidence that the claimed method uses conventional cell counting methods.”


They're again cherry-picking while openly admitting (as highlighted above) that they were wrong. Berkheimer has virtually no bearing/significance. As we said many times before, judges have left Berkheimer behind and the only ones who keep bringing it up are the patent maximalists.

It's time to leave Berkheimer in the past and stop 'pulling a Berkheimer' every other day/week.

Recent Techrights' Posts

The Week to Come
Planning ahead
LLM Slop Has Only Been a Boon for Misinformation Online
The very same companies that were supposed to maintain quality (again, not limited to Google with PageRank) are now actively participating in generating and spreading slop
When They Tell You It's Free, Does That Mean No Charges (If So, Who's Paying and Why)?
there's "no free lunch"
 
Links 28/07/2025: COVID-19 Sped up Brain Aging, "Circumvention is More Popular Than Compliance"
Links for the day
Richard Stallman is Usually Right Because He Thinks "Outside the Box"
he is able to observe society (mores and norms) as somewhat of an outsider
LWN Has Been Down for a Long Time, Another Casualty of LLM Bots?
Time will tell. How much time though?
Slopfarms Versus 'Linux' (and Against People Who Write Real Articles About GNU/Linux)
LLM slop in slopfarms by Brian Fagioli and Redazione RHC
Gemini Links 28/07/2025: Bila Yarrudhanggalangdhuray and Running pkgsrc in a FreeBSD Jail
Links for the day
Microsoft Turns News Sites Into Spamfarms
Is the site The Register MS the next IDG?
The Register MS/The Register US
On Saturday I contacted them for a comment (before issuing criticism)
Hacking revelations at Vatican Jubilee of Digital Missionaries
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 27, 2025
IRC logs for Sunday, July 27, 2025
We're Going to Focus Less on the Molotov Cocktail-Throwing Microsofters and More on Patents
We can get back to focusing on what we wanted to focus on all along
Just Trying to Keep Web Sites Honest (Journalistic Integrity)
the latest articles in LinuxIac are real
Links 27/07/2025: Political Affairs, Data Breaches, Attacks on Freedom of the Press
Links for the day
Gemini Links 27/07/2025: Hot in Japan and Terminal Escape Codes
Links for the day
Links 27/07/2025: More Microsoft Layoffs Coming, Science and Hardware News
Links for the day
Links 27/07/2025: FSF Hackathon and "Hulk Hogan Was a Very Bad Man"
Links for the day
Gemini Links 27/07/2025: DAW Mixer Chains and Simple Software
Links for the day
The Register MS is Inventing or Giving Air Time to New Conspiracy Theories so as to Distort the Narrative As High-Profile Agencies Fall Prey to Microsoft Holes
But the problem is holes, i.e. Microsoft making bad products; the problem is Microsoft
Most Editors at The Register Are American, Including the Editor in Chief, a Decade-Long Microsoft Stenographer (Writing Prose to Sell Microsoft)
It's not easy to tell where the site is based (we tried) because it's hiding behind ClownFlare and CrimeFlare hasn't been well lately
Pushers of systemd Rewrite History (Richard Stallman Said UNIX "Was Portable and Seemed Fairly Clean")
Unlike systemd
"New Techrights" Soon Turns 2 (A Few Days Before the FSF Turns 40)
We have a lot more to say about LLM bots
When Silence Says So Much
Garrett, a 'secure' boot pusher, will need to defend himself in the UK High Court
The Register in Trouble
There is not much that can be done at this point
Trajectory of The Register: From News Site/s Into "B2B"... and Into Microsoft Salespeople
Something isn't right at The Register
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 26, 2025
IRC logs for Saturday, July 26, 2025
Misinformation in Social Control Media
Social control media passes around all sorts of tropes
Slopwatch: Fake Linux 'Articles' and Slopfarms With "Linux" in Their Names/Domains
throwing bots at "Linux" to make some fake articles
Links 26/07/2025: Amazon Shutdown in China, Russian Economy Slows
Links for the day
Gemini Links 26/07/2025: History of Time (1988) and Gemini Games
Links for the day
Links 26/07/2025: 50 Percent Tariffs in Amazon, Dying Intel Offloads Network and Edge Group (NEX)
Links for the day
Doing My Share to Tackle Online Slop and SPAM
Trying my best to 'fix' the Web
Blaming Programming Languages for Users' and Developers' Bad Practices
That's like blaming cars for drivers who crash into things
Slopwatch: Fakes, FUD, Duplicates, and Charlatans Galore
The Web as we once know it is collapsing. Some opportunists try to replace it with low-quality slop.
The Register UK Seems to Have Become American and Management is Changing (Microsofter as Editor in Chief)
The Register 'UK' is now controlled by the Directions on Microsoft guy
Many People Still Read Techrights Because It Says the Truth, Produces Evidence, and Does Not Self-Censor
Unlike so many other sites
The Register is Desperate for Money, According to The Register
I decided to check how they're doing as a business
Microsoft Finally Finds a Use Case for Slop?
Create low-quality chaff to shift the media's attention?
Microsoft Windows Lost 400 Million Users in a Few Years, Why Does The Register Double Down on Windows With New US Editor?
days ago they hired a new US editor
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 25, 2025
IRC logs for Friday, July 25, 2025
For Libel Reform One Must First Bring (or Raise) Awareness to the Issues and Their Magnitude
I myself know, from personal experience
Links 26/07/2025: Rationed Meals in the US and TikTok Repels Investments (Too Toxic)
Links for the day
Gemini Links 26/07/2025: "Bloody Google" and New People in Geminispace
Links for the day
Response to Solderpunk (Father of Gemini Protocol) About the Gemini Community
Solderpunk responds to non-sequitur
HTML and the Web Used to be Something a Child Could Learn, "Modern" Web is a Puzzle of Frameworks, Bloat, and Worse
When the Web was more like Gemini Protocol