Bonum Certa Men Certa

Buzzwords and Hyped-Up Patent Cases (Like Berkheimer) Are Still Being Exploited to Promote Software Patents

Patent maximalists have turned it into a 'branding' match

Big branding



Summary: The attempts to overcome Alice and bypass Section 101 are becoming ever more desperate and dishonest; some law firms still bring up Berkheimer v HP and Aatrix Software v Green Shades (old decisions, virtually abandoned by now) and others carry on with "blockchains", "AI" and so on (new varnish on same old software patents)

THE courts in the US no longer receive as much patent 'action' as before. This is fine, but the goal should be to depress if not altogether eliminate patent trolls, not legitimate patent lawsuits. The legitimate patent lawsuits are those in which patents asserted are justified, defensible, and used proportionally against few parties, not in a 'fishing expedition' style (trolls sometimes target literally thousands of cash-strapped startups for 'protection' money).

A few days ago Docket Navigator published this update on Finjan, Inc. v ESET, LLC. Finjan is Microsoft's 'proxy' patent troll (see the Finjan timeline) and it's still attacking most of Microsoft's competitors with dubious software patents. This is the latest:

The court granted in part defendant's motion to compel the production of billing records from plaintiff's prosecution counsel because some discovery was relevant to defendant's prosecution laches and inequitable conduct defenses.


An article by Cara Bayles soon revealed that a Microsoft-connected patent troll (Microsoft paid it a lot of money to settle) is going after Apple and failing. To quote:

A California federal judge on Thursday said he would strike a number of “bogus and conclusory” claims from a Uniloc USA Inc. patent infringement suit against Apple Inc., but also allow Uniloc to amend those allegations, saying he disagreed with Apple’s contention that it could not mount a defense against the allegations it says are too vague.


Why were these software patents granted in the first place? That's the root of the problem.

"the goal should be to depress if not altogether eliminate patent trolls, not legitimate patent lawsuits."We've spent the past week looking closely at some news (and news about software patents in particular).

The USPTO has just granted software patents again [1, 2] and what's the excuse this time? When one uses buzzwords like "IIoT" to get software patents or even "Cryptocurrency", can examiners still say no? Can they see past the hype? These are all bogus software patents, but China is perhaps the only large nation in the world which permits these abominations (in courts, too). Mind this new article, "Blockchain Promises to Revolutionize Creative and Intellectual Property Rights," and remember that it's just lots of hype and propaganda terms like "Intellectual Property Rights" (IPR, but not inter partes review). Remember that it's also a loophole/trick for software patents.

"Why were these software patents granted in the first place? That's the root of the problem."Here comes Watchtroll with Berkheimer+Blockchain spin. Blockchain patents are just software and are thus bunk, they won't be usable in courts. But Watchtroll simply uses sound bites; it 'pulls a Berkheimer'. So did the anonymous (and without disclosure) "Inventors Digest" a few days ago. Here is what it argued: "Sadly, until recently, nearly 80 percent of all patents challenged under the “abstract idea” argument have fallen prey to the courts’ decisions, generally by way of summary motion at the beginning of a case. This means that most plaintiffs filing suit against infringers were simply told to pack their bags very early in the process, denying their right to a day in court. As a result, with the prevalence of this new doctrine, there is little incentive for an operating company approached by a patent owner to negotiate a license in good faith; the odds of killing the patent(s) at stake are so high and the costs to do so are still very low compared to a full trial on the merits."

Those who are still boosting Berkheimer and Aatrix in a coordinated effort to give an illusion of a software patents resurgence are lawyers and liars. There's no such resurgence. These are just 'sales' tactics.

"Blockchain patents are just software and are thus bunk, they won't be usable in courts."Here comes the so-called "Berkheimer Effect" (like magic stardust): "Two decisions from the court in Berkheimer v. HP and in Aatrix Software v. Green Shades Software stated that deciding whether a patent may simply embody an “abstract idea” may also be a question of facts, not just one of law."

No, these barely changed a thing. At all! They don't even get brought up anymore (or very rarely). Going back to blockchains, here's a new article hyping up "Blockchain-Related Patents" by name-dropping large and famous brand names like Walmart, MasterCard, IBM, and JPMorgan. To quote:

The United States Patent and Trademark Office (USPTO), the US agency that issues patents to companies and investors, awarded several blockchain-related patents on Thursday. Some of the companies that saw their applications approved are IBM, JPMorgan, Walmart, Intel, and MasterCard among others.


What a waste of money; but these companies are likely to cross-license rather than sue, so these patents are unlikely to ever be questioned... bar an inter partes review (IPR) at the Patent Trial and Appeal Board (PTAB).

"It often seems like any algorithm just needs to be labeled "AI" in order for it to be celebrated as innovative and supposedly patent-eligible. That's just what's 'fashionable' nowadays."If blockchains weren't bad enough a loophole (they actually refer to something real; they're not a mere buzzword, just hyped), here comes an article by Jeffrey H. Albright (Lewis Roca Rothgerber Christie LLP) about the buzzword "AI" and then Dr. Derek Lowe with "AI Will Not Threaten Pharma Patents – Not This Way" (this is about 'AI' in relation to examination, application and management). Everywhere one turns in the media these days it's "AI this" and "AI that" (they just call everything "AI", just as they did "cloud" and "smart"). And not in relation to patents but in patent maximalism sites we have "House Subcommittees Hold Hearing on Artificial Intelligence Challenges and Opportunities" and "How ARM Is Using Artificial Intelligence To Supercharge Its Patents" (the typical patent propaganda from Forbes).

It often seems like any algorithm just needs to be labeled "AI" in order for it to be celebrated as innovative and supposedly patent-eligible. That's just what's 'fashionable' nowadays.

Recent Techrights' Posts

Microsoft XBox Staff Know They're in Trouble, They Try to Unionise Ahead of Mass Layoffs
As the slang goes, it's going to be a "bloodbath"
SLAPP Censorship - Part 72 Out of 200: Microsoft's Graveley and Garrett Signed Documents That Hold Them Accountable to Truth and Liable for Lies
Such collaborations are unsavoury and apparently unprofessional, too
 
Codecs and Software Patents - Part V - A Reminder That GAFAM and the European Patent Office (Which Serves American Monopolists) Do Considerable Harm to the Commons and Culture
some 'breaking' developments
Gemini Links 10/05/2026: Inkscape, Guix, and Alhena 5.5.8
Links for the day
The "Alicante Mafia" at the European Patent Office (EPO) Experiments With New Methods for Crushing Industrial Actions
Open letter to VP1 and the COO [...] What does this tell us about the status quo at the European Patent Office, Europe's second-largest institution?
The Corrupt Lecture the Non-Corrupt - Part XVIII - "The European Patent Office (EPO) has a zero-tolerance policy for fraud" (except when managers do it)
The guidebook of the EPO says fraud is not to be tolerated, but who enforces or revisits such "Red Lines"?
Links 10/05/2026: Hantavirus Brings Back 'Contact Tracing' Surveillance, "Staple Food Prices Soar in Iran"
Links for the day
Links 10/05/2026: Fake Suicide Notes and New EU Restrictions on Slop
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, May 09, 2026
IRC logs for Saturday, May 09, 2026
Gemini Links 10/05/2026: Travelling to Van and "Dark Mode" as Passing Fad
Links for the day
IBM's Kyndryl Holdings Inc Sank 70-75% in 'Value' in 10 Months, Will IBM Follow?
Kyndryl Holdings Inc now has a debt considerably higher than this company is said to be 'worth'!
Belated Sovereignty: GNU/Linux in Iran Skyrockets to 6% Amid Armed Conflict
unless they're truly in control of their networks, hardware and software, somebody else can control them
Gemini Links 09/05/2026: Liberation, The Nocturnals, Rediscovering Internet Radio, and More
Links for the day
Links 09/05/2026: Kremlin’s Biggest Day of the Year and FBI's Attack on the Media (to Save Face)
Links for the day
Google is "Bullshit"
Fix your slop, Google. It's broken.
SLAPP Censorship - Part 71 Out of 200: 5RB Barristers Made Tens of Thousands of Pounds by Changing From Plural to Singular for Microsoft's Graveley and Garrett
Could not even get the client's name right
Links 09/05/2026: "Grand Theft Oil Futures" and Mass Layoffs at Verizon
Links for the day
Gemini Links 09/05/2026: Inkscape "Copy Text Style" and NomadNet
Links for the day
The Corrupt Lecture the Non-Corrupt - Part XVII - European Patent Office (EPO) Management Not Sharing Responsibility for Financial Resources
For those who wonder, EPO strikes are still going on
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 08, 2026
IRC logs for Friday, May 08, 2026
Gemini Links 08/05/2026: Slop Falsely Marketed to Greedy Administrators and New Official Maintainer of Antenna Confirmed
Links for the day
Links 08/05/2026: French Prosecutors Seek Charges Against MElon, Europe Wants Young People Without Skinnerboxes (Smartphones)
Links for the day
2,000-4,000 More Layoffs Expected at IBM's Kyndryl, Some Say Over 10,000 Layoffs
They use euphemisms like "restructuring" or "rebalancing"
Social Control Media and GAFAM as National Security Threats (Domestically and More So Abroad)
"Algorithms control messages, swayed 2024 presidential election"
Gemini Links 08/05/2026: Dissociated Pride and Prejudice, Smallnet Protocols Roundup
Links for the day
Links 08/05/2026: Slop Profiteer NVIDIA (and Circular Financing/Accounting Fraud Leader) May Be Liable for Mass Copyright Infringement, Kyndryl (IBM) Layoffs
Links for the day
Outgoing OSI Chief Was Paid by Microsoft to Advocate for GPL Violations (Using the OSI's Name). Now, Inside OIN, He Says GPL Violations Are 'Freedom'.
It seems like only compromised people can be "allowed" to run today's OSI
SLAPP Censorship - Part 70 Out of 200: Microsoft's Graveley Injunction Request 100% the Same as Garrett's (Pure 'Copy-paste', Not Even a Word or Single Character Changed!)
Not so funny at all
Over 97% of the 'Linux' Foundation's Budget Goes Not to Linux
There is a term for this: mission creep
Cloudflare is a Giant Pile of Debt, Now There Are Mass Layoffs and Media Coverage About This is Churnalism, Sometimes by Slopfarms (False Excuses)
If Cloudflare goes under, it'll be great news
NDAs as a Price Tag on Criticism (or Honest Expressions of Opinion)
What ever happened to accountability? Suppressed by reverse bribes (via NDAs)?
Internal Microsoft Communications Confirm: "Buyout" Offer Worse Than a Year's Salary and Microsoft Offers "Retirement" to Young People Who Cannot Retire
Does that sound like a good offer or marching orders?
It's Not a GAFAM World Anymore and There Are Far More Operating Systems Than Google's, Apple's, and Microsoft's
we're not getting the full picture of what's happening
Site Overhauls at Cybershow and at analognowhere.com (Less is More!)
They seem to be replacing the heavy PHP backend with static HTML pages
Microsoft's XBox is Going Away Like Microsoft's Skype (Slowly But Surely, Then All at Once)
XBox is dying rapidly
Codecs and Software Patents - Part IV - Things Got So Bad That Some Laptop Sales Got Banned in the EU (Over Software Patents!)
If software patents lead to such severe outcomes, shouldn't the media pay closer attention to the problem?
The Corrupt Lecture the Non-Corrupt - Part XVI - EPO Had Data Breaches, Covered Them Up, Now Lectures Staff That Didn't Do It and Didn't Cover It Up
Imagine what would happen to staff if (non-anonymously) blowing the whistle on management leaking and then covering up EPO data breaches
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 07, 2026
IRC logs for Thursday, May 07, 2026
Mass Layoffs at IBM's Kyndryl, Slop Won't Save Kyndryl
Kyndryl is a "done deal". It's done. It's finished.