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

Microsoft OSI Uses Its Money to Hire PR Agencies That Spy and Spread Mindless Openwashing of GPL-Violating Microsoft Ploy
`We're under attack. But the attackers smile at us and hire PR firms to spy, mislead etc.
In Nigeria, Africa's (by Far) Largest Population, Microsoft Bing is the 0%
To Microsoft, Africa is just "someplace" to get intensive, hard-working human 'resources' (tech labour) at 2 dollars 'apiece' as in per person per hour
 
Microsoft Layoffs and Closures Now Reported in Africa
Microsoft Uninstalls Nigeria as it closes African Development Centre (ADC) in Lagos
[Video] Richard Stallman, "I Saw You Playing Your Recorder in Paris" (Due to Proprietary Software Only)
Corporate autocrats do not want counterparts or alternatives to even exist
Five Years After the Extensive Campaign of Defamation Against Richard Stallman He's Still Giving Public Talks
"Richard Stallman will give a talk, in French, Free Software and Freedom in a Digital Society at Centrale Supelec in Saclay, on May 15."
Microsoft Is Rebranding Its 'Chatbot' Search for the Third Time Because It Fails to Gain Adoption
it always means that something has failed - not that they'll openly admit it
Richard Stallman Gives a Talk in Paris Next Week (in French) and It's About Freedom
another talk, which he has only just announced
Pace Up, Distractions Down
We've made our curation process faster and more efficient
In Algeria, GNU/Linux Estimated to Have Grown Tenfold in a Decade
a sharp rise in GNU/Linux usage
[Meme] Red Hat Diversity
Red Hat: don't mention Haghighi
Our Sister Site Turns 20 in Exactly One Month
twentieth anniversary of the site
Corporate Media Focuses on Who's Suing Red Hat, Not What It's Sued For
The unfortunate thing is, anybody who has an opinion on this lawsuit will inevitably be framed as "pro-Trump" or "anti-Trump"
Links 10/05/2024: Many More Microsoft Layoffs on the Way
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 09, 2024
IRC logs for Thursday, May 09, 2024
Gemini Links 10/05/2024: geminispace.info to Shut Down in 3 Weeks
Links for the day
Links 09/05/2024: Journalists in Detention, China Banning Songs or Anthems
Links for the day
Support for harassment and abuse victims
Reprinted with permission from Daniel Pocock
Gemini Links 09/05/2024: Being Sick Enough and End of “World of Ends“
Links for the day
Links 09/05/2024: 'Hey Hi' (AI) Bubble Implodes Some More, Microsoft Layoffs So Widespread It's Hard to Keep Track
Links for the day
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
Over at Tux Machines...
GNU/Linux news for the past 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