Bonum Certa Men Certa

The Anti-Section 101 (Pro-Software Patents) Lobby Looks at New Angles for Watering Down Guidelines and Caselaw

Section 101 (35 U.S.C. €§ 101) withstands endless lobbying against it

Section



Summary: By focusing on jury trials and patent trolls the proponents of bunk, likely-invalid abstract patents hope to overrule or override technical courts such as the Patent Trial and Appeal Board (PTAB)

IT SHOULD NOT surprise anyone that USPTO officials who came from the litigation 'industry' are upset at the Federal Circuit under Chief Judge Sharon Prost. As we shall show in later posts, she too has come under criticism if not attacks from the usual suspects. For those who forgot or haven't been following these affairs, Sharon Prost replaces a corrupt Chief Judge who was caught red-handed and is nowadays lobbying along with patent maximalists. They really hate Section 101, which basically invalidates just about any software patent.



A patent maximalist called Janal Kalis has just noted that "PTAB Affirmed an Examiner's [Section] 101 Rejection of Claims in a Thompson Reuters Patent Application for Docketing: https://e-foia.uspto.gov/Foia/RetrievePdf?system=BPAI&flNm=fd2017005527-11-07-2018-1 …"

This is the usual; whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high. Berkheimer has changed practically nothing.

"...whenever PTAB gets involved and Section 101 is brought up the likelihood of invalidation/rejection is very high."So what will those patent maximalists do about Section 101 and about PTAB? "Despite Misleading Question, Berkheimer Case Has Legs at the Supreme Court," Dennis Crouch says. Crouch himself is a very vocal patent maximalist and opponent of Section 101. And no, he's just trying to sway the court's stance, having long promoted software patents and patent trolls. The EFF has also just urged the Justices at SCOTUS to examine the case because they want closure (the court repeatedly declines to revisit the subject). Crouch mentioned "go[ing] to a jury." To quote: "In my view, the question presented by HP’s attorneys intentionally creates confusion as the Federal Circuit did not rule (1) that eligibility is a question of fact; or (2) that any aspect of the eligibility question goes to a jury. Rather, the Federal Circuit has repeatedly ruled, including in Berkheimer, that the question of “eligible subject matter is a question of law.” I’ll also note that no court following Berkheimer has seen eligibility itself as a question of fact or attempted to get a jury verdict on the issue. I contacted David Salmons (counsel of record for HP) to see what I’m missing about the misleading question, but he did not respond."

He was later admitting a mistake, citing patent troll Finjan. These Berkheimer pushers (who are software patents boosters) cite Microsoft's patent troll Finjan in relation to letting a nontechnical jury decide on patents (a big mistake). His mea culpa:

In my recent Berkheimer post, I wrote that “that no court following Berkheimer has … attempted to get a jury verdict on the issue.” Turns out that I’m potentially wrong.

In the pending case of Finjan, Inc. v. Juniper Network, Inc. (N.D. Cal. 2018), Judge Alsup has ordered a jury trial on the “inventive concept” question. In its order, denying summary judgment, the court found that the Claim 10 of Finjan’s U.S. Patent No. 8,677,494 was directed to the abstract idea of “collecting data, analyzing data, and storing results.” (Alice Step 1). However, the court decided to wait for trial to determine the inventive concept question...


Looking at this troll's affairs, it's pretending to be an actual company, it attracts some investment, and it speaks of 'sales' when all it really does is litigation. This is the kind of firm that needs to go bankrupt because it's a classic troll.

"Logical arguments about the scientific contribution of such patents (or detriment thereof) don't seem to bother them. A facts-based, evidence-based discussion just doesn't appeal to these people."Jury trials, as we have been pointing out several times over the past year, are more likely to get things wrong; jury trials are not suitable for technical matters involving patents, which they don't understand (particular scientific disciplines). This is misapplying one principle of law to granting of a monopoly. Juvan Bonni, who works with Crouch, has incidentally just promoted these two recent papers. One of these is sort of 'court bashing' by Cambridge Technology Law (a push against PTAB); they just loathe patent quality, so they try to discredit the court and AIA. How typical. More lobbying as “papers” (the Koch Brothers sponsor some other attacks on PTAB, using 'scholars' in institutions they sponsor). The second of those two speaks of juries in patent litigation. Watchtroll has meanwhile taken this further with N. Scott Pierce (Saul Ewing Arnstein & Lehr, LLP), who repeats the same arguments (more or less). What we find noteworthy here is that almost a year later (10 months) they are still pushing Berkheimer, engaging in revisionism about Oil States (no matter what SCOTUS ruled this past summer) and obsess over faulty jury trials (based on misinformation) so as to discredit the court. Logical arguments about the scientific contribution of such patents (or detriment thereof) don't seem to bother them. A facts-based, evidence-based discussion just doesn't appeal to these people. They never wrote a single line of code.

Recent Techrights' Posts

People Who Assault Women Are Not Victims of "Distress"
It seems like an American tradition. In a country with almost 50 presidents, not even one was a female.
Adoption of Gemini Protocol Still Growing
Gemini Protocol is being obscured by the media - it doesn't help that Google 'hijacked' the word "Gemini" - but people still manage to find out about it, download a client, and use it
Brett Wilson LLP "Takes it Personal" (Character Assassination, Not Professionalism). Everybody Can See That.
On behalf of violent men
Pissing Contests and Pissing Off Everyone
people who came from Microsoft are trying to vex and divide the community
Microsoft Repeats the Mistakes Made by the EPO After We Exposed a Major Microsoft/EPO Scandal 10 Years Ago
That scandal was all over the media, not just in English
 
Changing One's Name Won't Change One's Past
People who have earned a bad reputation are not magically "entitled" to reset
Slashdot Media Turned Linux Journal Into a Slopfarm and Now Slashdot Actively Promotes Anti-Linux Slopfarms
Yes, "no-nonsense" apparently means actual nonsense
Links 14/07/2025: Arresting Photographers, Threats to Revoke US Citizenship Over Criticism
Links for the day
More EPO Leaks on the Way
We hope that Mr. Rowan will actually try to refute what we say and show, not merely point the finger at the messengers
Decommodification is a Corporate Strategy Against Communities
systemd is led by Microsoft and hosted by Microsoft
copyleft.org 'Hijacked' by the People Who Attack the Person Who Created Copyleft
So far there's nothing "tasteless" in copyleft.org, but that can change at any time in the future
Asking People to Take Down Articles and Videos Only Makes These More Popular and "Viral"
If you do something bad, one of the worst things you can possibly do it try to silence those who speak about it
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, July 13, 2025
IRC logs for Sunday, July 13, 2025
Two-Thirds Towards FSF Goal, Richard Stallman to Give Talks in Europe
There are 67 left before reaching the target
Gemini Links 14/07/2025: Politicised Tech and "Leaving GitHub"
Links for the day
The Demise of LLMs
We've just checked BetaNews again. They've dropped all the slop and went back to human authors.
Gemini Links 13/07/2025: Sonpo Museum of Art and FCEUX
Links for the day
Links 13/07/2025: UnitedHealth's Censorship Campaign, Australia Wary of China
Links for the day
Firing Away With Nonsense
Or fighting fire with fire
Links 13/07/2025: Climate Crisis, GAFAM Poisoning the Water
Links for the day
Turns Out LLMs for Code Don't Save Time and Don't Improve Quality
Neither legal nor useful
The Microsofters Will Have an Obligation to Compensate Us
This story isn't just about Microsoft. It's also about corruption, there are many women victims, there is abject "abuse of process", and many more scandals to be illuminated in years to come.
Reproducing at the EPO Instead of Producing Monopolies for Foreign Monopolies With Their Price-Fixing Cartels
Does the EPO recognise the need of well-educated Europeans to bear kids?
Valnet Inc. Dominates Real (Not LLM Slop) GNU/Linux Coverage in 2025
And likely in prior years, too
Free Software Foundation (FSF) Fund Raiser Goes on
Later this month we'll expose another OSI scandal
EPO Staff Representatives Issue a Warning About Staff's Health and Inadequate Care
Even the EPO's own stakeholders (money sources) are openly protesting against what the EPO became
Links 13/07/2025: Partly Assorted News From Deutsche Welle and CBC
Links for the day
Gemini Links 13/07/2025: Board Games and Battle Styles
Gemini Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, July 12, 2025
IRC logs for Saturday, July 12, 2025
Plunder at the Second-Largest Institution in Europe
cuts, neglect, health problems, even early deaths
Links 12/07/2025: Political Developments, Attack on Opposition, Climate Actions
Links for the day
Gemini Links 12/07/2025: Melodic Musings and Small Web July
Links for the day
Links 12/07/2025: Jail in China for Homoerotica, South Korea Discriminates Against Old Workers
Links for the day
If Only Everything Was Rewritten in Rust, We'd Have No More Security Issues?
Nope.
Links 12/07/2025: Birdwatching and Fake/Misleading Wall Street 'Valuation' Figures
Links for the day
Gemini Links 12/07/2025: How to Avoid Writing, Apps for Android
Links for the day
Using SLAPPs to Cover Up Sexual Abuse and Strangulation
The exact same legal team of the Serial Strangler from Microsoft and Garrett already has a history fighting against "metoo"
EPO Staff Committee on Harassment in the Workplace
slides
Adding the Voice of Writers to UK SLAPP Reform
The journey to repair antiquated (monarchy era) laws will likely be long
EPO Takes More Money From Staff for Speculation (Pensions), Actuarial Study Explains the Impact
"The key change in this year’s Actuarial Study, due to cascading the new “risk appetite” from the financial study, is a significant increase of the total pension contribution rate of 5.7 percentage points, up to a total of 37.8%. This is driven by an unprecedented decrease in the discount rate of 105 bps down to 2.2%."
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, July 11, 2025
IRC logs for Friday, July 11, 2025