Bonum Certa Men Certa

The US Supreme Court (SCOTUS) Will Waste No Time on Section 101. It Will, However, Waste Its Time on Obvious Patent Trolls.

The future looks bright for software development in the US because software patents have perished

The green shirt



Summary: A roundup of American patent affairs; in short, nothing is really changing on the patent (scope) front and that's a positive thing

THINGS are in general going well outside the chaotic EPO where António Campinos openly promotes software patents in Europe. Things improve in the sense that much of the world -- including the US, Australia and Canada -- are leaving software patents behind. They recognise that only lawyers and trolls want such patents; software developers strongly reject if not abhor such patents.



Deplorable patent lawyers from north America will never rest. They will never give up. Bereskin & Parr LLP's Cameron Gale, for instance, has just willfully given bad advice to businesses in spite of knowing software patents are worthless; these people even blast the law itself (or the policy of the Canadian Intellectual Property Office (CIPO)). Pure greed. But we have gotten accustomed to that. As it turns out, based on LWN's article "Patent exhaustion and open source" (it was freed from the paywall on Thursday morning, or about 10 hours ago), lawyers have even entered Free/Open Source software events. This one is about Lindberg and it mentions Alice:

A patent is a limited legal monopoly granted to protect an invention, giving the holder the right to exclude others from using, making, selling, and importing the invention (including things that embody the invention) for a fixed period of time. Much has been said and written over the years about the extension of patents to cover ideas that are expressed in software, but software patents are definitely with us at the moment.

There are, however, a number of limitations on the rights that a patent grants. One of these is patent exhaustion, which protects the ability of those lawfully in possession of goods embodying patents to use, sell, or import those goods without interference from the patent holder. Exhaustion prevents the patent holder from profiting more than once from the sale of any particular item; in Lindberg's words, as soon as the patent holder puts something "into the stream of commerce", the patent rights are exhausted. If Alice holds a patent for an invention embodied in a widget, and she sells a widget to Bob, then Bob is protected against accusations of patent infringement because he acquired the widget from the patent holder. If Bob sells his widget to Carol, she is similarly protected; not because she has licensed the patent from Alice, but because Alice's patent interest in that widget was exhausted by that first sale to Bob.

[...]

We in the free software world have repositories, distributions, and mirrors; copies of source code are hosted by companies willy-nilly. Suppose that some company had mirrored a copy of a Linux distribution, with its thousands of constituent programs, each of which might embody one or more patents. Then that same company, because it is an authorized licensee for such of those patents as the company itself either held or had a right to use (by virtue of being in one or more patent pools or cross-licensing arrangements), would have exhausted those patent rights with respect to that software. Lindberg did add a caveat, however: courts frequently try to avoid surprising outcomes, therefore a court might follow the argument but decide not to allow it anyway.

At this point, Lindberg reminded attendees that Microsoft bought GitHub. After a short pause, the entire room, with a large proportion of lawyers in the audience, giggled, a sound that can only be described as chilling, then applauded. He then went further and proposed an N-way merge across copies of code bases sanitized by different distributors with respect to their different patent portfolios, to create code bases that are exhausted with respect to all patents that all those various distributors are authorized to use.


That Microsoft part is neither funny nor worthy of the applause. It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment. Maybe one day it will use the same tactics to push all code -- private code too -- into GitHub (for a fee).

While it seems unlikely that Alice is going away (any time soon), it's worth keeping vigilant. The CCIA's Joshua Landau wrote on Twitter [1, 2] about Iancu's attitude towards patent trolls and Alice: "This quote is a problem. American *patents* don’t treat anyone; progress does. Might need patents to make that progress, but as @PatentScholar, @colleen_chien, etc., argue, we don’t know for sure. Iancu could pursue the policy experiments to prove it. Not his priority. [...] The quote is symbolic of the misconception held by far too many - apparently including the @uspto director - that patents have inherent value, as opposed to being an instrument to drive progress and only being valuable insofar as they do so."

"It is a real problem because Microsoft has weaponised patent trolls in order to sell Azure surveillance and entrapment."Iancu is disgracing the U.S. Patent and Trademark Office (USPTO) by deliberately ignoring caselaw and granting patents he knows to be fake (like the President who gave him this job after his private firm had worked for him). Iancu is a symptom of the political meltdown and corruption under Trump. Decline in US patent quality has had the expected effect on litigation and application. Both are down, the former very sharply. It's good news to everybody but lawyers (remember where Iancu came from).

Seeing that there's no recourse, the lawyers have reverted to more action in Congress. Clueless Coons continues with his zombie legislation (two years in the making already [1, 2], still going nowhere in this fight against 35 U.S.C. €§ 101). It's a bill that will never pass because technology companies have more power than the litigation industry. Here is what the litigation industry's section of Bloomberg wrote some days ago:

House and Senate lawmakers are ramping up efforts to rewrite the definition of patent eligibility, in a bid to create greater legal certainty around patents held by pharmaceutical, life sciences and technology companies.

Lawmakers are quietly meeting with company and trade group representatives to ask for suggestions on how to rewrite Section 101 of federal patent law, which defines what inventions may be patented. The U.S. Supreme Court has issued a series of decisions on patent eligibility that practitioners say have left the law poorly defined. Companies are uncertain about what inventions are patentable, and which granted patents can survive challenges.

“There have been a few Supreme Court rulings that have affected the ability of the patent office to know with certainty what is patentable, particularly in the realm of medical diagnostics and computer software, and these are areas of great growth,” Rep. Hank Johnson (D-Ga.), the new chairman of the House Judiciary’s intellectual property subcommittee, told Bloomberg Law.


This "Bloomberg Law" thing is just a litigation lobby in "news" clothing; we wrote about it before. We're not surprised that they try to give rather than clip wings of this zombie legislation, which can be safely ignored for now (there are more such bills and they too have vanished).

"The person in question is an Internet troll, not just a patent troll."It is also not surpising that patent maximalists like Dennis Crouch have not gotten tired of trying to push Section 101 questions into SCOTUS. Seeing that all these abstract patents are finished (good for nothing but putting in a frame and hanging on the wall like a trophy), they urge patent maximalists to give persuasive input and compel Justices to reevaluate the Federal Circuit's stance.

It truly bothers these patent maximalists that not only courts throw out software patents (we have just seen several new outcomes to that effect and added these to our daily links because we no longer cover American patent cases); Patent Trial and Appeal Board (PTAB) inter partes reviews (IPRs) have the same effect at a much broader scale (thousands of patents). Get used to it.

Speaking of SCOTUS, mind last night's article about an upcoming case. Authored by Mike Masnick, it deals with two topics that TechDirt likes to cover: patents and attacks on free speech. "Calling a company a patent troll is not defamatory," Masnick asserted. Here's the introduction:

Over the years, there have been a few attempts -- usually by companies that most of us would call patent trolls -- to argue that calling a company a patent troll is defamatory. These arguments rarely get very far, because they completely misunderstand how defamation works. However, a company with some questionable patents around bank ATMs, called ATL, tried a few years back to sue a bunch of its critics over the "patent troll" name. Thankfully, the local court in New Hampshire correctly noted that calling someone a patent troll is protected speech under the First Amendment and is not defamatory.


The person in question is an Internet troll, not just a patent troll. He has been trolling me in Twitter even though I ignored him. A long time ago I came to consider that person to be borderline insane or a stalker and I was rather shocked to learn that the Supreme Court will give him even a minute of its time. Who next in SCOTUS? David Ike?

Recent Techrights' Posts

Five Years After Its Formation Libera.Chat Has the Most Simultaneous Users in Internet Relay Chat (IRC)
netsplit.de also measures the cross-network total at over 300k, probably for the first time in years
 
Laptop Bricked After Microsoft Certificates Expiry
Is "Jim" dead?
Monoculture in Europe as National (or Continental) Security Threat
We need more browser diversity
Canada 5-0: GNU/Linux Rises to 5.0%, Windows Rapidly Falls to New Lows
Will we be seeing 6-0 (6%) by year's end and will Microsoft be shown two red cards?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Sunday, June 28, 2026
IRC logs for Sunday, June 28, 2026
Gemini Links 29/06/2026: Sansieviera, HiFi, and Self-Signed Certificates
Links for the day
Outsourcing is Not Security
Outsourcing to Microsoft is the opposite of security
Links 28/06/2026: Turkey's State Broadcaster Suspends Commentator, Journalists Under Attack
Links for the day
Debugpoint.com Turns to LLM Slop for 'Help'
This is how sites die
Follow the Real Security Experts
Werner Koch
Assessing the Upcoming (July) Proprietary/GAFAM Cuts
The total (or %) matters to us because it can help shed light on what scale of layoffs to expect next week
Microsoft Lunduke Does Not Correct or Clarify Misinformation That He Posted (or Repeats It Instead)
Not the first time [...] detracts and/or distracts from legitimate criticisms
How Not to Do Security
Asking Microsoft for permission
Gemini Links 28/06/2026: Simulation Theory and Pursuit of Novelty
Links for the day
The Slop 'Religion' is Dying: From Widespread (Paid-for) Hype to Widespread Hate
Wait till "sentiment" in Wall Street - not just general (public) "sentiment" - shifts strongly against slop
For Whistleblowers' Sake, Choose Hosting Platforms Wisely
Techrights is hard to 'sedate'
How to Discreetly Leak Important Information to Techrights
Some years ago we published multi-part series about how to contact us securely
Expect Many More Whistleblowers From Microsoft
We envision many pissed off workers from Microsoft will become whistleblowers after next week's giant wave
Efforts to Resume Progress on FreeJS, LibreJS, and Reduce Dependence on Microsoft
It's still in a relatively early development stage
Whistleblowers Improve the World
we should appreciate and respect whistleblowers
Microsoft Windows Plunges to All-Time Lows in Japan
Microsoft is disintegrating; many people no longer use (nor need) Windows
GNU/Linux Turns 43 in 3 Months From Now
The Manifesto of the Free software movement (GNU Manifesto, 1985) turned 40 last year
SLAPP Censorship - Part 121 Out of 200: One Day We'll Discover What Company or Rich Person/s Funded the Lawfare Against Us
Even if the law firm shoulders some of the losses, then it is in effect an investor in the lawfare, according to established caselaw
Working on "Linux", But on Microsoft's Payroll
Under the totally false guise of "security" those same people are now promoting TPMs and other horrible things
Links 28/06/2026: Energy Crunch, EEE by Microsoft, and John Bolton Pleads Guilty in Dictatorship of SLAPPs
Links for the day
Jim Not Dead Yet
Let's wait a few more days
Microsoft Layoffs So Big They Cannot Even Wait for 'D-Day' (July 1)
"Layoffs at Xbox Appear to Have Already Begun, with Multiple Compulsion Games Employees Announcing Their Departures"
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 27, 2026
IRC logs for Saturday, June 27, 2026
Links 28/06/2026: Heatwave in Europe and Media Failing to Actually Criticise Power
Links for the day
Gemini Links 28/06/2026: Poems, Photographs, and Neoliberalism as Religion
Links for the day
SLAPP Censorship - Part 120 Out of 200: Garrett Undermines His Own Application Because His Friend Graveley Failed to Accomplish What They Had Both Aimed For
Hold off the "popcorn"
Don't Settle for Slop
Slop is a bit of a symptom of where society is told to go
Gemini Links 27/06/2026: Photography From Interlaken to Shynige Platte, Slop 'Code', and Distro Hopping
Links for the day
TIGER COMPUTING LTD Sent Us Threats Half a Decade Ago (Because of Criticism of Their In-House Debian Developer), Now the Company's Debt is Deepening
So what is they're connected to the military?
GNU/Linux in Mexico Near All-Time High
With all the tourists packing the place (or hotels) we can imagine big changes to be seen next month (many portable devices)
Summer Plans in Tux Machines
July is nearly upon us
Gopher (Protocol) Turns 35, Gemini is 28 Years Younger
Bad technology comes and goes very fast
Be Like Stallman and Assange, Not Like MElon or Bill Epsteingate
these people treat women like worse than dirt
Exposure Leads to More Whistleblowing
In areas like IBM or European patent affairs we've always earned a lot of trust
European Patent Office (EPO) Series Will Run Well Into July
We still have a very significant chunk of EPO "trench" stories
Links 27/06/2026: Journalists Kicked Out of China, Torture in Iran and Turkey
Links for the day
How Microsoft is Preventing or Slowing Down Adoption of GNU/Linux (Fake 'GNU' Controlled by GitHub in Windows, WSL, Sabotage at Boot Level, Not Limited to Dual-Booting)
Microsoft is still at it
Rising Computer Prices Good News for GNU/Linux and Free Software
This can greatly assist the adoption of BSDs and GNU/Linux
Links 27/06/2026: More Restrictions on Social Control Media and Russia is Leveraging Cellebrite/Back Doors
Links for the day
Saying "No" is Not a Bad Thing
Society benefits from people who say "No!" even when it seems impolite (and possibly inconvenient) to say so
Next Week's "Bloodbath" at Microsoft Includes "Silent Layoffs" (Which Microsoft Won't Count)
The notion of "silent layoffs" is fast becoming the "new normal"
Akira Urushibata on the Likely False (Unverifiable) Claims Anthropic Makes About Defects for Marketing/Hype
Some pro-LLM person has managed to derail the discussion on this topic
European Patent Office (EPO) Series: "Team Campinos" in Split
The EPO team was of course headed by Campinos himself who delivered a "forward-looking" keynote speech to the assembled audience consisting mainly of Administrative Council delegates from the national IP offices
Supporting Women in the Free Software Community
The common theme here is abuse of women
Left IBM After Many Years, Came to Microsoft/XBox, Now Silent Layoffs at XBox
many inside XBox will have their last day next week
Gemini Links 27/06/2026: Homeworlds and Tarot Cards
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 26, 2026
IRC logs for Friday, June 26, 2026