Bonum Certa Men Certa

Post-Alice, the Patent Microcosm is Up in Arms and Scraping the Bottom of the Barrel for Anti-Alice Material

Summary: In search of new ways to justify software patents, those who are in the legal 'industry' seek to twist cases and cherry-pick cases from the lowest possible courts, relying perhaps on lack of research and blind trust in the legal 'industry' with its so-called 'articles' (marketing disguised as news)

IT IS always nice to see the patent microcosm losing its mind over the end of software patents (Alice/Section 101). This new blog post (Carl Oppedahl on Carol Bidwell) shows how procedural issues creep in and drive them nuts, too. In fact, one patent maximalist asked: "Why would @uspto be trusted to make it easier for prosecutors? Or, practitioners in general?"



"This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. ""Their job or task is not to make it easier for prosecutors," I told him. It developed into a conversation. This just served to show the sort of privilege/entitlement the patent maximalists sense that they have. If they apply for a monopoly and get rejected, that does not make them an unhappy customer but a failing applicant. People who go to job interviews, for instance, are not customers and there's no customer service when they get rejected/declined. Anyway, from the Oppedahl/Bidwell post:

An Examiner made such an objection a couple of days ago in one of our cases. We will be able to force the Examiner to withdraw the objection.

Before explaining why it is that we will have no difficulty forcing the Examiner to withdraw this objection, let’s ask ourselves how such an objection could even arise.

The requirement that the Abstract commence on a separate sheet was imposed over a decade ago, and it was for a very simple purpose — to make life easier for Reed Tech (a LexisNexis company), which is the government contractor that carries out the printing of US patents. Almost every detail of the way that you and I file and amend US patent applications is spelled out in USPTO rules that are designed to make life easier for Reed Tech.

[...]

Of course this Abstract in our case, in the form in which the USPTO computer system obtained it from the WIPO computer system, was on the front page of a published PCT application. So it was not on a page by itself. It shared a page with lots of other things such as the title and the names of the inventors.


What matters is the substance of patent applications. It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job). But this post isn't about EPO. We just want to highlight similarities.

"It has already emerged, based on EPO insiders, that many patents now get rejected only on structural grounds (like the above) rather than actual assessment of patents (because there's not enough time to actually do the job)."Either way, there's danger that USPTO examiners now rush to reject patents not based on prior art etc. (which takes time and effort to find and ascertain) but based on glaring technical errors in the structure. This way examiners can fake supposed 'production' or 'productivity' (when the yardstick is number of patents processed, i.e. accepted/rejected). We certainly hope that USPTO administration staff pays attention to these things.

It has meanwhile emerged that Watchtroll moved from endless PTAB and Alice bashing to webinars in which Watchtroll was/will be promoting UPC and software patents. These people strive for a "grant everything" policy (wherein all decisions are to be made in courts where they make plenty of money through legal bills). It is appalling when they also meddle in Europe. The other day Watchtroll wrote about the Court of Appeals for the Federal Circuit (CAFC), noting that CAFC may have touched Alice again. The headline is somewhat misleading; look at the body:

In Inventor Holdings the Federal Circuit affirmed an award of attorneys fees under Octane Fitness against a business method patentee who filed suit before the Supreme Court decided Alice. The Federal Circuit affirmed the award because Inventor Holdings did not “reassess” its case in light of Alice and at that point decide sua sponte that its claims were “objectively without merit”. This was done despite the fact that business methods are not unpatentable per se and, as Inventor Holdings itself argued, it was still reasonable post-Alice to believe its patent covered eligible material because Section 101 “was, and is, an evolving area of law and… the €§ 101 inquiry in this case was therefore difficult.”

But in so holding, the Federal Circuit also provided some very useful language that could be used by patent prosecutors and litigators alike in an attempt to overcome Alice:


So it's basically some vague loophole about a case which actually predates Alice. CAFC has consistently rejected software patents throughout the year, so Watchtroll scrapes the bottom of the barrel in search of some "good news" (for patent predators like Watchtroll).

"They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all)."Other elements of the patent microcosm have meanwhile looked at district courts (lower than CAFC) for some "good news" and found the District of Minnesota denying Alice as applicable/relevant. To quote: "The District of Minnesota recently issued its fourth post-Alice decision, this time addressing the question of patent subject matter eligibility for a check processing patent. After analyzing a representative claim using the two-step Alice framework, the Honorable Susan Richard Nelson held that the claims were not directed to an abstract idea, and even if they were, provided an inventive concept. The Court also granted summary judgment in favor of Solutran, Inc. (Solutran), finding that U.S. Bancorp’s Electronic Check Service system infringed the asserted patent. For businesses that rely on check processing technology, the decision and breadth of the patent could have significant implications."

It's very rare for US courts (especially like CAFC or higher ones) to not accept Alice, so when it happens the patent microcosm amplifies it. The headlines can sometimes be misleading. They just try to 'sell' the idea that software patents are still worth pursuing (it's their business after all).

Recent Techrights' Posts

Over at Tux Machines...
GNU/Linux news for the past day
Microsoft Layoffs and Closures Now Reported in Africa
Microsoft Uninstalls Nigeria as it closes African Development Centre (ADC) in Lagos
 
Speaking of Enshittification and Freedom, We've Still Not Begun Tackling the UEFI 'Secure' Boot Mess (Preventing GNU/Linux From Even Booting!)
Microsoft continues to fly under the radar and commit competition crimes with impunity
Microsoft Has Just Confirmed Mass Layoffs in Nigeria, It Now Adds Insult to Injury With Price Hikes for Locals
It's not like Microsoft paid them good salaries
Software Enshittification or Freedom? It's not a hard choice!
Reprinted from Alexandre Oliva
Links 09/05/2024: More Microsoft Layoffs on the Way
Links for the day
Amid Microsoft Layoffs in Nigeria GNU/Linux Climbs Above 6% Market Share (Not Including ChromeOS)
Hundreds are being laid off by Microsoft in Nigeria, based on yesterday's reports
[Meme] Blame the Robots or the 'Hey Hi' (AI), It Always Works in Today's Media
Companies do not have financial troubles! They have "efficiencies"...
News Reports Say Many More Microsoft Layoffs on the Way, Rumours Say Red Hat Also Imminently a Target
Microsoft is slipping out of control
Links 09/05/2024: Diplomacy Efforts With China, AstraZeneca Stops Experimenting With COVID-19 Vaccines
Links for the day
IRC Proceedings: Wednesday, May 08, 2024
IRC logs for Wednesday, May 08, 2024
Gemini Links 09/05/2024: Registered Computer Professionals and TLS (The Long Slog)
Links for the day
Links 08/05/2024: Android Malware and "AI" Hype
Links for the day
[Meme] Technical Committee With People Who Are Not Technical
the computing/computer industry being occupied by people who lack suitable background
The Demise of Computer Science Education
Education is essential for the future; without it, whole nations will perish
[Video] Prisons for the Minds and for Tech Workers
Today's video talks about what happens to workforces (across disciplines) in recent years
[Meme] Struggling to Leave Its Nazi Past Behind
digital arson
Microsoft Declines to Talk About How Many People It Has Just Laid Off
Hours ago in IGN: "Microsoft did not say how many staff will lose their jobs, but significant layoffs are inevitable. IGN has asked Bethesda for comment. Microsoft declined to expand further when contacted by IGN."
Microsoft Windows in South America: From 99% to 87%
the latest from statCounter
It's Rather Obvious Why They Try to Silence Richard Stallman, Eben Moglen, and Daniel Pocock
Some of them already sent physically menacing messages to Daniel Pocock
IRC Network of Techrights Turns 3 (or 16 if We Count the Freenode Days)
In a few months IRC turns 36
Sedating Oneself (and Shareholders) With Fuzzy Buzzwords and Pointless Acquisitions
IBM trying to buy time
Clickfraud Spamnil Ran Out of Clickfraud Budget, Apparently
sooner or later charlatans and frauds run out of steam
Techrights Gets Under the Skin of Bad, Corrupt, Immoral People (That's a Good Thing)
Journalism is the lifeblood of democracy and free societies
Companies Do Not Shut Down Offices and Lay Off Staff en Masse (Morale and Reputation Issue) Unless They're in Deep Financial Trouble
Microsoft has been faking its financial performance for years
IRC Proceedings: Tuesday, May 07, 2024
IRC logs for Tuesday, May 07, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Video] Leaving Microsoft Behind for the Sake of National Security
Threats to "National Security" aren't some users with an Android phone but Microsoft at the root of things
GNU/Linux and ChromeOS Now at 6% in France, According to statCounter
numbers from statCounter
Gemini Links 07/05/2024: Music Spotlight and Network Knobs
Links for the day
Only Weeks After Microsoft Closed Offices and Studios It is Closing Several More (Many Layoffs, Still Deeply Debt-Saddled)
When the sad news writes itself
Bolivarian Republic Of Venezuela: GNU/Linux Reaches 9% (ChromeOS Included)
Venezuela must have lost interest in some American proprietary software when users were locked out of their own data (Adobe) and the costs could no longer be justified
[Video] Microsoft is Like Big Oil, Big Tobacco, and Other Perpetrators of Fear, Uncertainty, Doubt/Fear-mongering
openwashing, Microsoft lobbying, and Microsoft subsidies (e.g. bailouts in the form of 'defence' contracts)
Security & Debian: Urgent: New Feed URLs after another WIPO censorship
Reprinted with permission from Daniel Pocock
World Press Freedom Day: WIPO censors Debian suicide cluster
Reprinted with permission from Daniel Pocock
Gemini Links 07/05/2024: Smashing Windows (Moving to GNU/Linux) and Mastodon Time-wasting
Links for the day
Links 07/05/2024: Pulitzer for Supreme Court Expose, New Threats to Media Reported
Links for the day
Links 07/05/2024: Cheap EVs and Cloudflare Layoffs
Links for the day
Berlin police declined to investigate FSFE Nazi comparisons
Reprinted with permission from Daniel Pocock
[Meme] Communities Governed by Parasitic Elements and Girlfriends (Who Can't Understand Those Communities)
Karen Sandler and Molly de Blanc present at DebConf18
[Meme] You Can't Kill an Idea (or Facts)
Thankfully, in Western societies, there's still due process, rule of law etc. You don't just hire assassins or imprison critics
[Meme] Software in the Public Interest (SPI), Inc, Values Articles of Daniel Pocock at ~$5,000 Each (and Fails to Hide the Facts)
we are laughing, not grieving
IRC Proceedings: Monday, May 06, 2024
IRC logs for Monday, May 06, 2024
Over at Tux Machines...
GNU/Linux news for the past day
[Meme] About 2,564 Internet Sites Now at Risk of Hostile Takeover by Microsoft-Sponsored Software in the Public Interest (SPI)
WIPO censors Debian suicide cluster
Links 07/05/2024: Burning Plastic Waste, Facebook Censoring Politicians
Links for the day
Gemini Links 07/05/2024: Smashing Windows (Microsoft Losing Users to GNU/Linux), Sixty Years of BASIC
Links for the day