Bonum Certa Men Certa

Patent Extremists Are Unable to Find Federal Circuit Cases That Help Them Mislead on Alice

Freedom to develop software (code) with lower risk of patent litigation in the US

Dolphin



Summary: Patent extremists prefer talking about Mayo but not Alice when it comes to 35 U.S.C. €§ 101; Broadcom is meanwhile going on a 'fishing expedition', looking to profit from patents by calling for embargo through the ITC

IN RECENT years the US Supreme Court (SCOTUS) guided the USPTO into a harder approach towards software patents; if there's nothing "hard" (as in non-abstract), then a patent isn't suitable 'protection', maybe copyrights at best. This has always made perfect sense to actual software developers, but policy was perturbed by lawyers for their selfish interests.



"This has always made perfect sense to actual software developers, but policy was perturbed by lawyers for their selfish interests."The Federal Circuit has taken SCOTUS decisions such as Mayo and Alice into account; so did the Patent Trial and Appeal Board (PTAB), which is basically a lot more efficient and is technically part of the Office.

"This case had nothing to do with software."At the start of the year there were a few Federal Circuit outcomes (decisions) which patent maximalists were able to spin in order to market software patents; but nothing of that kind has happened for months. Watchtroll, failing to cherry-pick any 'convenient' cases, would rather speak of Vanda Pharmaceuticals -- a case that we've mentioned here before (albeit not much because it's really about Mayo, not Alice). John M. Rogitz (Rogitz & Associates) wrote about this USPTO "memo [which] dives into the Federal Circuit’s holding, noting that “[t]he Federal Circuit distinguished Mayo, stating: ‘The inventors recognized the relationships between iloperidone, CYP2D6 metabolism, and QTc prolongation, but that is not what they claimed. They claimed an application of that relationship. Unlike the claim at issue in Mayo, the claims here require a treating doctor to administer iloperidone.’…As a result, the Federal Circuit held the claims in Vanda patent eligible under the first step of the Alice/Mayo framework…because the claims ‘are directed to a method of using iloperidone to treat schizophrenia,’ rather than being ‘directed to’ a judicial exception.”"

This case had nothing to do with software. The following day Theodore Chiacchio (also in Watchtroll) persisted with Mayo:

This article examines Supreme Court and Federal Circuit analyses of patent eligibility under 35 U.S.C. €§ 101 where the patent claims at issue were directed to Life Sciences-related technologies. I first examine this topic in the context of composition of matter patent claims and then in the context of method claims. As reflected in the below discussion, while the €§ 101 case law is fairly straightforward with respect to composition claims, the case law is murkier when it comes to method claims.


Suffice to say, this has nothing to do with software or even computing. We're watching that domain closely and there's no rebound there of any kind; software patents are pretty much dead.

"We're watching that domain closely and there's no rebound there of any kind; software patents are pretty much dead."Patent Docs too has meanwhile cherry-picked just one case (so far this week): Akeso Health Sciences, LLC v Designs for Health, Inc.

This one does not even related to €§ 101 but to €§ 286. "Patentee Equitably Estopped from Asserting Patent Due to 10-Year Delay in Filing Suit," their outline says. Here are some portions:

Earlier this year, in Akeso Health Sciences, LLC v. Designs for Health, Inc., District Judge S. James Otero of the U.S. District Court for the Central District of California granted a motion for summary judgment filed by Defendant Designs for Health, Inc. ("DFH"), in which DFH argued, inter alia, that Plaintiff Akeso Health Sciences, LLC should be equitably estopped from asserting U.S. Patent No. 6,500,450 due to Akeso's ten-year delay in filing suit. Akeso had filed suit against DFH for infringement of the '450 patent, which relates to a dietary supplement for the treatment of migraine headache, asserting that DFH's manufacture and sale of the migraine treatment product Migranol indirectly infringed the asserted claims due to various instructions and implications on the label.

[...]

The Court indicated that its finding was further bolstered by 35 U.S.C. €§ 286, which precludes a patentee from recovering for any infringement committed more than six years prior to the filing of the complaint. In particular, the Court explained that "the patentee's failure to preserve over four years' worth of potential lost profits is reasonably interpreted as an abandonment of its claims." With respect to the first element of equitable estoppel, the Court therefore found that "the patentee, through misleading conduct (or silence), [led] the alleged infringer to reasonably infer that the patentee [did] not intend to enforce its patent against the alleged infringer," quoting Radio Sys. Corp. v. Lalor, 709 F.3d at 1130.


We don't typically write about the absence of something, but it's certainly noteworthy that these patent maximalists fail to find anything 'positive' (to them) to report about Alice. No news is good news in that regard...

"Any time there's a lawsuit or a call for embargo they pounce at the opportunity to promote it. They don't care about technology, only legal bills."Then there's Broadcom's ITC complaint that we covered last week (after Reuters had covered it). We covered ITC issues a week earlier and Broadcom's flirtation with this strategy early last month, not too long after Qualcomm merger/takeover attempts (stopped some months ago and it looks like NXP will be the one to get devoured). Watchtroll's take on this is pretty revealing. Any time there's a lawsuit or a call for embargo they pounce at the opportunity to promote it. They don't care about technology, only legal bills.

Recent Techrights' Posts

Russia Set to Ban Facebook?
If WhatsApp is made to "leave", that means Facebook or "Meta".
Taking Stock of a Good and Productive Week
We shall now be taking a break, unpacking the new hard drive (8 TB), and making backups of everything
Ageism in Tech
Your protocol is "old"...
In Norway, Android/Linux Has Just Hit All-Time High (First Time Since 2020), GNU/Linux Already Very Prevalent
Despite its small population size, Norway gave us Qt and many other things
Microsoft's Mass Layoffs Very Wide-Ranging, Media Focused on Gaming Though Microsoft Mass-Firing Lawyers and "AI" Staff (Contradicting Its Supposed "Investment" in "AI")
Microsoft plans to fire almost half a thousand people in legal roles
2012 Article About the Free Software Foundation Blasting Canonical/Ubuntu Over Adoption of "Secure" Boot (Microsoft's Remote Control Over GNU/Linux Since PCs' Power-on)
By Katherine Noyes (article has since then became 404, not found)
 
Gemini Links 20/07/2025: Summertime and OCC25 Wrap-up
Links for the day
Jamie Zawinski Complained About Wayland, Then Decided to Give It a Go, Now Complains Again About Wayland
Ask IBM (Red Hat) why it's worth throwing so much away just for Wayland fanaticism
Slopwatch: Planet Ubuntu, LinuxSecurity, and More
former "Linux" blogs which basically became slopfarms
Links 20/07/2025: More GAFAM Lawsuits, Layoffs, and SLAPPs
Links for the day
Nice Recovery (From Actual Fire) by PCLinuxOS, New Version of PCLinuxOS Released, Now Top of DistoWatch
PCLinuxOS is a community-driven distro
More Microsoft Shutdowns That Mostly Slipped Under the Radar
Remember what happened to books 'sold' by Microsoft?
Microsoft Lunduke Still Fighting Cancel Culture With... Cancel Culture
There will be no "winners" in such 'debates'
The History of Daily Links and Politics
"I support Wayland, but I also support abortion..."
Microsoft is at 0% "Market Share" in Most Areas
Depending on the taxonomy chosen, there may be dozens of categories other than desktops and laptops
"The moment MSFT stock fails to start tumbling, that’s the beginning of another corporate giant going under."
There are far more layoffs at Microsoft than at Intel, but you would not get this impression based on Wall Street media
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 19, 2025
IRC logs for Saturday, July 19, 2025
Gemini Links 19/07/2025: Git For Authors and Filtered Antenna
Links for the day
UEFI 'Secure' Boot Abuses by Microsoft to be Brought Up in the UK High Court in 3 Months
we'll seek compensation
Next Year It'll Be Half a Decade Since the Fall of Freenode (and IRC is Still Doing OK)
Our IRC network is still accessible using the exact same software that ran in Windows 3.x
Lupa Will Soon Know of 3,100+ Active Gemini Capsules
And some people in the "Small Web" try to tell us that Gemini is dying?
The Slopfarms Are Taking Real News Articles and Replacing Them With Lies Generated by Machines
Bluntly speaking, Fagioli is nothing short of an online scammer
Links 19/07/2025: Techtarget to Cull 10% of Staff, New Threats to Free Press in the US (Home of Dangerous and Violent Stranglers From Microsoft)
Links for the day
Gemini Links 19/07/2025: "Climate Justice” and Forking Programs
Links for the day
What Wayland and Microsoft/IBM systemd Have in Common
focus on what IBM (Red Hat) is pushing while running over critics.
Linux Already Has About 60% of the "Market"
"When mentioning the client side," opines an associate, "it is essential to recite the list of other markets where Microsoft is negligible or a no-show. It is repetitive to do so, but it needs saying -- often."
Finland (and NATO) Must Move to GNU/Linux and Dump Microsoft Even Faster
"Microsoft is not a technology problem, it is a staffing problem."
The Microsofters We Sued Helped Microsoft Make GNU/Linux 'Expire' This Year
"Linux and Secure Boot certificate expiration"
linuxconfig.org Joins linuxtechlab.com and Others, Becomes a Slopfarm With Fake Linux 'Articles' (LLM Slop)
They contain "linux" in their domain names, but they are just slopfarms
Links 19/07/2025: Microsoft Cuts in China and Wall Street Journal Sued for Reporting on Jeffrey Epstein
Links for the day
Debian Can Dump Blind Users Because I am Not Blind
the sort of mentality we're up against
Fascistic Policies Got 'Normalised' in 'Public Office'. Let's Not Let the Same Happen in 'Tech'.
Political discourse typically guides what's "normal" and what "good citizens" should believe/feel
The European Patent Office Cannot Attract Proficient Patent Examiners Who Master Their Domain
They are enablers and facilitators of corruption
Yes, Your Mastodon Instance Will Also Shut Down
Few people run a one-person instance in the Fediverse
The Demise of GAFAM Necessitates Greater and Broader Awareness
Morale at Microsoft is really bad
Free Software Foundation Reaches 75% of Funding Goal
Not bad for this "Fosschild"
Slopwatch: 7 New Examples of Fake 'Linux' Slop Pieces (Plagiarism With Misinformation)
Serial Sloppers need to be shunned
Links 19/07/2025: Kapo-berg Settles, Software Patents Challenged
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 18, 2025
IRC logs for Friday, July 18, 2025
Links 18/07/2025: Peace With PKK and Connie Francis Dies
Links for the day
Gemini Links 18/07/2025: Alhena 5.1.8 and Bornhack 2025
Links for the day
How to Top Up a "Limited Liability" With Even More Limitations (Dodging Accountability in the UK)
Some people call it a "shell game". Sometimes it's done for tax evasion purposes.
Free Software Foundation, Inc. (FSF) Inches Towards 75% of Fund-Raising Target
Will the cutoff date be extended again?
Gemini Space (or Geminispace) Grows, But Usage of Certificate Authority Let's Encrypt Drops Further
Ideally, all Gemini capsules should use self-signed certificates
Links 18/07/2025: More Microsoft Layoffs in Activision, The New Stack (Sponsored by Microsoft) Complains About Openwashing
Links for the day
Gemini Links 18/07/2025: OCC25 Gnus for Reading Usenet and RSS Feeds, Small Web Updates
Links for the day
[Meme] 9AM Meeting at Brett Wilson LLP
Brett Wilson LLP in space
Listing as Staff People Who Left the Company More Than Six Years Earlier
There are apparently no laws against that
Brian Fagioli Shovels Up LLM Slop (Plagiarism) Onto Slashdot, Then Uses Slashdot for Affirmation or as Badge of Honour
Notice how some of his latest slop is presented ("as featured on Slashdot")
Social Control Media Productivity
Snapping photos of the bone
The Law Firm SLAPPing Us For the Microsofters Lost 72% of Its Tangible Assets in the Past Year, According to Its Own Reports
That might help explain why they're willing to tolerate serial stranglers from Microsoft as clients
Slopwatch: LinuxSecurity.com Slopfarm and Slopfarms Propped Up by Google News
"As LLM slop is foisted onto the WWW in place of knowledge and real content, it now gets ingested and processed by other LLMs, creating a sort of ouroboros of crap."
Links 18/07/2025: Weather Events and Health Hazards
Links for the day
Microsoft's All-Time Low in Finland
Microsoft is in a freefall
Security: Shane Wegner & Debian statement of incompetence
Reprinted with permission from Daniel Pocock
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, July 17, 2025
IRC logs for Thursday, July 17, 2025