Bonum Certa Men Certa

US Supreme Court is Not Revisiting Patent Scope After Alice

Book



Summary: 35 U.S.C. ۤ 101 remains untouched as SCOTUS Justices prefer talking about ۤ 102 and ۤ 284/ۤ 271, which have nothing to do with software patents

EIGHT years after Bilski and four years after Alice there's still no sign of a turnaround for software patents in the US, irrespective of what the USPTO grants and does not grant (what matters is the outcome in the courts, not the Office).



"The Justices don't open up to the possibility of altering patent scope, notably €§ 101."As it turns out, prior art (€§ 102) will be looked at next, at least in relation to a case that Dennis Crouch has been writing about for quite some time. Yesterday he wrote that "[t]he Supreme Court has granted Helsinn’s petition for writ of certiori in the first case focusing on the 2011 rewriting of the prior art and novelty statute 35 U.S.C. 102."

That's it? So it's good news again. The Justices don't open up to the possibility of altering patent scope, notably ۤ 101.

There's meanwhile plenty of discussion about a "damages" case, the WesternGeco case (WesternGeco LLC v. ION Geophysical Corp.), which we mentioned here a few times prior to the outcome. Richard Lloyd (patent trolls' lobby, IAM) wrote about it yesterday, as did Kevin E. Noonan and George "Trey" Lyons, III. Here are a couple of portions:

On Friday, the Supreme Court reversed the judgment of the Federal Circuit in WesternGeco LLC v. ION Geophysical Corp. Justice Thomas (joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Alito, Sotomayor, and Kagan) held that, based on the "focus" of 35 U.S.C. ۤ 284 of the Patent Act (the general damages provision) when read in light of domestic infringement under 35 U.S.C. ۤ 271(f)(2) (barring exportation of components specifically adapted for a patented invention), a patent owner could recover lost foreign profits. The decision overruled the Federal Circuit's general practice of interpreting damages under ۤ 271(f)(2) in the same fashion as ۤ 271(a) (the general infringement provision, which does not allow patent owners to recover lost foreign profits).

[...]

For the time being, one practical consequence of this decision is that U.S. patent owners may now recover foreign lost profits tied to domestic acts of infringement under ۤ 271(f)(2).


Crouch's colleague reposted something for Professor Holbrook, who had "authored an amicus brief in WesternGeco v. Ion," according to him. The opening paragraph:

When the Supreme Court agreed to review WesternGeco LLC v. ION Geophysical Corp., it was unclear how sweeping the decision would be. The case had clear implications for patent law. It would be the first time the Supreme Court had addressed patent infringement damages under 35 U.S.C. €§ 284 since its 1984 decision General Motors Corp. v. Devex Corp. The briefing and oral argument suggested the Court had some interest in assessing proximate cause in patent damages, an issue that has not been addressed by the Supreme Court or revisited by the Federal Circuit since its seminal en banc decision in Rite Hite Corp. v. Kelly Company Inc. Finally, beyond patent law, this case had implications for the Court’s jurisprudence on the presumption against extraterritoriality, particularly as to whether the presumption applies to remedial provisions.


Professor Risch alludes to Professor Holbrook and says:

The Supreme Court issued its opinion in WesternGeco last week. The holding (7-2) was relatively straightforward: if an infringer exports a component in violation of 35 USC 271(f)(2) (that is, the component has no substantial noninfringing use), then the presumption of extraterritoriality will not bar damages that occur overseas. And that's about all it ruled. It left harder questions, like proximate cause, for another day.

I spent the end of the week and weekend reading commentary on the case (and tussling a bit on Facebook and Twitter). A couple blog posts worth checking out are Tim Holbrook's and Tom Cotter's. I had just a few thoughts to add.


As we said last year, WesternGeco LLC v. ION Geophysical Corp. is almost of zero relevance to us because we always focus on patent scope. It did, however, show that the Justices don't have the alleged "anti-patent" bias and we're glad to see that nothing over the horizon can challenge Alice. As we'll note in our next post, the patent litigation 'industry' is in collapse.

Recent Techrights' Posts

A Week After a Worldwide Windows Outage Microsoft is 'Bricking' Windows All On Its Own, Cannot Blame Others Anymore
A look back at a week of lousy press coverage, Microsoft deceit, and lessons to be learned
 
Links 26/07/2024: Hamburgerization of Sushi and GNU/Linux Primer
Links for the day
Links 26/07/2024: Tesco Cutbacks and Fake Patent Courts
Links for the day
Links 26/07/2024: Grimy Residue of the 'AI' Bubble and Tensions Around Alaska
Links for the day
Gemini Links 26/07/2024: More Computers and Tilde Hosting
Links for the day
Links 26/07/2024: "AI" Hype Debunked and Elon Musk's "X" Already Spreads Political Disinformation
Links for the day
"Why you boss is insatiably horny for firing you and replacing you with software."
Ask McDonalds how this "AI" nonsense with IBM worked out for them
No Olympics
We really need to focus on real news
Nobody Holds the GNOME Foundation Accountable (Not Even IRS), It's Governed by Lawyers, Not Geeks, and Headed by a Shaman Crank
GNOME is a deeply oppressive institutions that eats its own
[Meme] The 'Modern' Web and 'Linux' Foundation Reinforcing Monopolies and Cementing centralisation
They don't care about the users and issuing a few bytes with random characters costs them next to nothing. It gives them control over billions of human beings.
'Boiling the Frog' or How Online Certificate Status Protocol (OCSP) is Being Abandoned at Short Notice by Let's Encrypt
This isn't a lack of foresight but planned obsolescence
When the LLM Bubble Implodes Completely Microsoft Will be 'Finished'
Excuses like, "it's not ready yet" or "we'll fix it" won't pass muster
"An escalator can never break: it can only become stairs"
The lesson of this story is, if you do evil things, bad things will come your way. So don't do evil things.
When Wikileaks Was Still Primarily a Wiki
less than 14 years ago the international media based its war journalism on what Wikileaks had published
The Free Software Foundation Speaks Out Against Microsoft
the problem is bigger than Microsoft and in the long run - seeing Microsoft's demise - we'll need to emphasise Software Freedom
IRC Proceedings: Thursday, July 25, 2024
IRC logs for Thursday, July 25, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Links 26/07/2024: E-mail on OpenBSD and Emacs Fun
Links for the day
Links 25/07/2024: Talks of Increased Pension Age and Biden Explains Dropping Out
Links for the day
Links 25/07/2024: Paul Watson, Kernel Bug, and Taskwarrior
Links for the day
[Meme] Microsoft's "Dinobabies" Not Amused
a slur that comes from Microsoft's friends at IBM
Flashback: Microsoft Enslaves Black People (Modern Slavery) for Profit, or Even for Losses (Still Sinking in Debt Due to LLMs' Failure)
"Paid Kenyan Workers Less Than $2 Per Hour"
From Lion to Lamb: Microsoft Fell From 100% to 13% in Somalia (Lowest Since 2017)
If even one media outlet told you in 2010 that Microsoft would fall from 100% (of Web requests) to about 1 in 8 Web requests, you'd probably struggle to believe it
Microsoft Windows Became Rare in Antarctica
Antarctica's Web stats still near 0% for Windows
Links 25/07/2024: YouTube's Financial Problem (Even After Mass Layoffs), Journalists Bemoan Bogus YouTube Takedown Demands
Links for the day
Gemini Now 70 Capsules Short of 4,000 and Let's Encrypt Sinks Below 100 (Capsules) as Self-Signed Leaps to 91%
The "gopher with encryption" protocol is getting more widely used and more independent from GAFAM
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, July 24, 2024
IRC logs for Wednesday, July 24, 2024
Techrights Statement on YouTube
YouTube is a dying platform
[Video] Julian Assange on the Right to Know
Publishing facts is spun as "espionage" by the US government and "treason" by the Russian government, to give two notable examples
Links 25/07/2024: Tesla's 45% Profit Drop, Humble Games Employees All Laid Off
Links for the day
Gemini Links 25/07/2024: Losing Grip and collapseOS
Links for the day