Bonum Certa Men Certa

Deception on €§ 101/Alice Continues, Courtesy of Firms That Are Making Money From Worthless (Bunk) Software Patents

Just projecting their personal agenda

35 U.S.C. 101 mirror



Summary: 35 U.S.C. €§ 101 does not seem to matter to people whose living is made from litigation and patent pursuits on (or pertaining to) algorithms; we rebut a few examples from the past week, reminding readers that lawyers aren't credible advisors on issues they stand to gain from (at clients' and innocent companies' expense)

THE collapse of software patents is very much a reality in the US. Don't ask law firms; they just want to sell more 'services' (e.g. lawsuits and patent applications) around that.



The other day in Law.com there was an article with the term "Open Source" in the headline, which got our attention. Don't be misled though; Law.com is traditionally a Free/Open Source software-hostile site, typically helping lawyers sell services around licence compliance and other things which are marketed by FUD. “Patents and open source are not mutually exclusive,” someone (a self-appointed expert) is quoted as saying in this new piece.

"They're alluding to the corporate 'flavour' of "Open Source", not Free/Open Source software."Actually, they are. They're not compatible. Software patents and Free/Open Source software cannot co-exist. “You can do both and do both correctly," continues the self-appointed expert, "but it takes education, especially for people who are newer in the industry.”

They're alluding to the corporate 'flavour' of "Open Source", not Free/Open Source software. "Moore said engineers often join Pure Storage from companies that were not engaged in open source projects," the author writes, "and expect a similar policy. Others are pro-open source, but may not know the benefits of patents."

So they're trying to market software patents to companies which claim to be "Open Source", such as Red Hat (it's applying for software patents and really ought to stop doing that). "That’s one reason why Gideon Myles," continues the author, "lead IP counsel at San Francisco-based Dropbox Inc., said his company educates new employees on both processes."

"When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this."In other words, they're wasting employees' capacity and reducing their productivity because of silly patents.

Are these actually worth pursuing anymore? No.

But that's not what lawyers (with fanciers job titles like "IP counsel") want companies to believe, or else they'll lose their job if not the entire legal department.

When it comes to patents in general (i.e. not software), patents may make sense, but as far as Free/Open Source software is concerned, there should be no patents in that (their) domain. No good would come out of this.

Sadly, as media in this domain remains dominated by law firms (or authors who extensively quote them), one may easily get the impression that software patents are still potent, even in the face of €§ 101/Alice.

In a new guest post by "Benjamin C. Stasa, Shareholder, Brooks Kushman PC, Southfield, Michigan and David C. Berry, Director, Patent Procurement Clinic, Wayne State University Law School, Detroit, Michigan" (i.e. mostly the patent 'industry') they suggest workarounds to bypass €§ 101. They're also trying to water down €§ 101 or obliterate it by any means possible/available.

From the outline:

We offer an alternative approach for amending €§ 101 to allow some range of patentability for inventions directed to judicially-recognized eligibility exceptions. Rather than attempting to redefine the line between eligible and ineligible subject matter (a revision that preserves the current all-or-nothing approach), we propose amending €§101 to implement disclosure-based limits on the scope of claims directed to judicially-recognized exceptions (abstract ideas, laws of nature, and natural phenomena).


It's the same old tricks; IBM and IPO lobby along those lines, as we shall show later today. They say they want to "amend" €§ 101, but what they mean to say is "weaken". €§ 101 is based on several judgments from the Supreme Court, yet these people think that some blog post of theirs, based on their financial agenda, has relevance to €§ 101?

"There's no quantitative/numerical data to support an assertion like "comeback" for software patents."€§ 101 is already very clear, but Iancu (who is acting like a 'mole' of the patent microcosm, at least thus far in his term, serving or speaking for the litigation 'industry' he came from) does't like it and wants it thwarted in defiance of the Supreme Court. Here's a new tweet about it: "#BIO2018 IP track kicked off with opening remarks from Andrei Iancu of the @uspto. Clarifying #section101 and changing the dialogue to focus on brilliance of #inventors high on agenda."

Well, the Biotechnology Innovation Organization (BIO) is an anti-PTAB lobbying body and for Andrei Iancu to even attend this event says a lot about his interests. Also on the subject of €§ 101, Mondaq republished a piece from Charlene Lipchen (Field LLP). She is misleading people if she seriously thinks that there's a software patents rebound in the US (there's none), calling it a "Glimmer Of Hope" and stating the following upfront: "It remains a general rule, in patent law, that one cannot obtain a patent for an abstract idea. Over the years, patent claims for methods implemented by computers and software have been struck down by the courts, on the basis that merely using a general-purpose computer to implement an abstract idea does not make the abstract idea patentable. More recently, since the Supreme Court of the United States' 2014 decision in Alice Corp. v. CLS Bank, a software patent case providing a revised test for determining what is patentable subject matter, most patents containing claims to software challenged in US courts have been struck down. The patent claims at issue in Alice were directed to a method for implementing an intermediated settlement between parties."

"A fortnight ago we began seeing pure spin by patent extremists, claiming that €§ 101 would see the US Congress/Senate involved, but that was something that people nowadays call "fake news"."That's that same optimism we've just responded to. There's no quantitative/numerical data to support an assertion like "comeback" for software patents. And Iancu cannot change that either; he's not a judge. Law is outside his scope of authority.

A fortnight ago we began seeing pure spin by patent extremists, claiming that €§ 101 would see the US Congress/Senate involved, but that was something that people nowadays call "fake news".

A new article by Matthew Bultman (with his usual patent maximalist slant, which we took note of before [1, 2, 3, 4]) speaks of a "High Court" being "begged", but no such thing happened. A high court wasn't mentioned at all. This is more of that pure spin, a 180 degrees spin in Law 360. To quote:

The Cleveland Clinic Foundation on Friday seized on a Federal Circuit judge's recent call for a “higher authority” to clarify what is eligible for a patent, telling the U.S. Supreme Court a current state of confusion begs for intervention.

The clinic, which is fighting a decision that invalidated three patents on cardiovascular disease tests, highlighted comments Circuit Judge Alan Lourie made last week when the appeals court denied separate rehearing requests from HP Inc. and Green Shades Software Inc.


The term “higher authority” does not imply "High Court" like Bultman's headline insinuates. In fact, there's no evidence at all that anyone at all is going to revisit these cases. €§ 101 remains in tact.

As is widely known, €§ 101/Alice isn't taken as seriously by the lower courts. Yes, at the lower courts (District Courts) as opposed to the Federal Circuit (CAFC), €§ 101 is more likely to be swept aside, as was the case in Hybrid Audio, LLC v Visual Land, Inc.

Joseph Herndon, writing about a trial in a California District Court, managed to find one of those 35 U.S.C. €§ 101 cases in which judges dismissed the defendant's argument:

In the U.S. District Court for the Central District of California, Hybrid Audio, LLC sued Visual Land, Inc. for patent infringement with respect to audio signal processing technology used in conjunction with MP3 technologies. Defendant filed a motion to dismiss, alleging that the patent was invalid under 35 U.S.C. €§ 101. Despite seemingly very broad claims, the Court found that it was clear from the asserted patent that the claims were directed to an improvement in the functioning of a computer, and thus, were patent eligible.

The patent at issue is entitled "Signal Processing Utilizing a Tree-Structured Array," which originally issued as U.S. Patent No. 6,252,909 on June 26, 2001. After a reissue application was filed for the '909 Patent, the '909 Patent reissued with certificate number RE40,281, and subsequently, a request for reexamination of the '281 Patent was filed, and the PTO issued a reexamination certificate for the '281 Patent confirming patentability of the reexamined claims.

[...]

Thus, despite broad claims that recite only functional aspects, and no physical components or elements that perform the functions, the claims were found to be patent eligible because the patent disclosure clearly set forth how the claimed processes improved computer functionality as compared to prior art. This enable the plaintiff to show that the claims were necessarily rooted in computer technology, solved a technical problem with a technical solution, and improved upon prior computer technology—all factors weighing in favor of patent eligibility.


If this gets appealed (to CAFC), this patent will likely be invalidated as per/in lieu with €§ 101 (as usual).

Have we come to the point where it's so hard for patent lawyers to find CAFC rulings in favour of software patents? Are they now looking for supportive cases at lower courts?

Recent Techrights' Posts

Perpetual Strikes to Begin at European Patent Office (EPO), Large Majority Votes for Strikes Any Day of the Week
Approved industrial actions [...] Notice how none of the media or even so-called 'IP' blogs write about it
 
Why Techrights and Many Other Sites Stopped Doing April Fools’ Day Articles
Well before slop (made by LLMs) it was "bad optics" to have satire or humour in a site, irrespective of the day of the year
President Not-Cocaine Campinos Notified of Historic EPO Strikes (Thousands of Workers Not Coming Back to the Office)
Please do pay attention to how the media treats these strikes in Europe's second-largest institution
Slides From the Presentation Discussing EPO Strikes Until End of June or Until End of 2026 (Maybe Next Year Too)
More to come soon (later today)
IBM Cuts Are Everywhere (Global), the Aim is to Lower the Pay
Because the revenues keep falling (IBM buys other companies' revenues using borrowed money)
Mozilla is Not a Privacy Company, Mozilla is Run by GAFAM Executives and Managers Who Came From American Surveillance Companies
Would you trust a VPN they claim to be "free"?
SLAPP Censorship - Part 25 Out of 200: That Time Matthew J. Garrett Got Temporarily Banned/Suspended From Twitter
That he gets banned from large social control media platform is hardly surprising given his combative communications
Ubuntu Started as Free With ShipIt, Now It Becomes Payware That Exploits Debian Volunteers (Slaves)
"Ubuntu" the distro now replaces the GNU components inherited from Debian with a bunch of Microsoft GitHub (proprietary) things that reject reciprocal licences
Last Night The Register MS Published a Fake Article. It Mentioned "AI" 27 Times.
Paid-for nonsense! [...] What's left of once-respectable news sites actively harms society
Links 27/03/2026: Google Executive (GAFAM, US, Surveillance) "Named the New BBC Head", Prominent Climate Scientist Resigns From NASA
Links for the day
Gemini Links 27/03/2026: "Being Busy" and "Posting Again"
Links for the day
GNOME Has No "Real" Executive Director, Only an IBM (Perma)'Interim' One With No Openings in Sight
GNOME is having financial problems
Microsoft Experiencing "Leadership Exodus"
Microsoft's current position is no better than Meta's (Facebook)
GNU/Linux Distros Should Reject "Age Verification" and Uphold Software Freedom for Users
It's not about protecting children
Slop Plunge
we can already "smell the blood" of the so-called 'AI industry'
IBM Media Puff Pieces While Layoffs Go On and On
Has the PR industry absorbed the press?
Media Says Microsoft Hiring Freezes, But There Are Already Microsoft Layoffs
They want the public to talk about Microsoft as if it's just not hiring when it is actually firing
Richard Stallman lynchings: Sruthi Chandran splitting Debian
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, March 26, 2026
IRC logs for Thursday, March 26, 2026
Links 26/03/2026: Tor Relay at National Taiwan Normal University, Copyright Hammers Fall
Links for the day
Gemini Links 26/03/2026: "The War of the Worlds" and "sometimes science is just the dumbest thing"
Links for the day
The World Wide Bots
The shape of the Web is so bad that bots exceed humans in some places
Links 26/03/2026: Solicitors Regulation Authority (SRA) Closes 101 Law Firms in 2 Years, "Please Compensate the Work You Appreciate"
Links for the day
Regaining Software Freedom Means Regaining Control Over Programs That Run on Our Devices
Richard Stallman will speak in Italy
Microsoft Secure Boot Removes Users' Choice
Has Greenland banned Microsoft and 'secure' boot yet?
IBM Pushes Workers Out, It Does Not Count Them as "Layoffs"
The number of IBM layoffs can be as large as tens of thousands per year
Hard to Find a Job After Working for Microsoft (Back Doors Giant, Bribery Hub)
It generally looks like people who chose to serve Microsoft's agenda don't end up too well
Microsoft Lost 31% Of Its Alleged "Value" in Five Months, Then It Got Downgraded
In 2026 Microsoft focuses on keeping the layoffs silent
Altering Perceived Reality to Make It Seem Like Microsoft is Thriving, Not Failing
pretend XBox did not die
SLAPP Censorship - Part 24 Out of 200: The Failed Effort by Brett Wilson LLP to Strike Out My Lawsuit and My Wife's Lawsuit Against Garrett (the Master Allowed Our Lawsuits to Proceed)
This is lawfare
Official New Figures Show That Solicitors Regulation Authority (SRA) Sees Rise in Dishonesty Among Law Firms Forcibly Shut Down ('Euthanised' Due to Misconduct)
It's rather if in our little country as many as 16 law firms were found to be so dishonest that they needed to be shut down
Back to Normalcy
In our datacentre at least
IBM is "Increasing Its Temporary and Part-time Headcount" While Net Headcount Falls (Despite Buying Many Companies and Their Workforce)
Headcount is a rather superficial yardstick.
Confluent Insiders: IBM Laid Off Over 800 at Confluent, Not Just 800
For the record, the layoffs at Confluent won't be over. After the bluewashing there will be "IBM RAs" impacting Confluent folks, aside from PIPs
EPO Union Decides to Continue Industrial Actions, Next Strike in Four Days
The latest strike had the highest participation rate
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, March 25, 2026
IRC logs for Wednesday, March 25, 2026
Microsoft's "Silent Layoffs" in Slop Clothing
"AI-powered transformation" is just a euphemism for mass layoffs
Where and How to Spot LLM Slop
Many people correctly perceive LLMs as a site's downfall, a step towards the abyss
Public Talk by Richard Stallman in Half a Day "at the Engineering and Architecture Campus of Cesena of the University of Bologna"
He'll probably attract a fairly large crowd
Gemini Links 26/03/2026: Buying a House, Stargazing, OFFLFIRSOCH 2026
Links for the day
Links 25/03/2026: Nations Return to Russian Oil and Burning Wood
Links for the day
Gemini Links 25/03/2026: Resisting Authoritarianism and Why Slop Needs to Go Away
Links for the day
Fedora Maintainer-ship Using Slop (Mistakes) Would Make Fedora Less Reliable
It won't produce reliable code or stable systems one can rely upon
IBM's "Legacy Employees" (Experienced Workers, IBM Management Dubs Them 'Dinobabies')
This notion of "legacy employees" seems like something overlapping with "expensive" (well paid) staff, even if not entirely equivalent
EPO's "Current Industrial Actions Are Likely to Intensify Further."
There is another strike in 5 days
This Morning The Register MS Published Slop Promotion With the Term "AI" 15 Times In It. The Register MS Was (As Usual) Paid to Do This
This is not a serious publisher
SLAPP Censorship - Part 23 Out of 200: We Were Right All Along (for 2 Years) About Third Party Funding and Willingness to 'Break the Bank' in Pursuit of "Revenge"
How much damage can a person do to oneself in pursuit of cover-up of legitimate technical concerns?
Gnome Foundation Inc is in Trouble
the agenda is set GAFAM and IBM rather than donors
Links 25/03/2026: Airports Further Militarised, "Slopification and Its Discontents", Microsoft 'Open' 'Hey Hi' Shutting Things Down
Links for the day
Gemini Links 25/03/2026: Blogging Fright and Absolutely Useless 'Apps' Made by Slop Machines
Links for the day
Rise in Energy Prices Will Significantly Accelerate the Death of So-called "AI Companies"
It should be noted that fake news about Microsoft OpenAI doubling workforce (mere words, not actions) can serve as a nice distraction from the death of Sora due to divestment
It's Always a Question of Trust
There's a widespread stigma of lawyers being manipulative and chronically dishonest
Solicitors Regulation Authority (SRA) Must More Carefully Investigate or Assess the Financial State of Law Firms in the UK
We'll cover this in depth in the future
GAFAM Mozilla Removes Theora Support, Now GNU Needs to Re-encode Videos
Mozilla used to mean something to Free software advocates
An Open Admission Profits Depend on Addiction
Proprietary software tends to be like this
IBM Americas President Ayman Antoun Comes to OpenText, Weeks Ahead the Mass Layoffs Begin
Is that what IBM will be good at?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, March 24, 2026
IRC logs for Tuesday, March 24, 2026