Bonum Certa Men Certa

Software Patents Are Against the First Amendment, Rules a CAFC Judge in Historic Decision That is Another Nail in the Software Patents Coffin

Screenshots taken by Jan Wildeboer (Red Hat)

Opinion on IV



Opinion on IV



Summary: Further reinforcing the current trend, software patents' demise in the United States has just been ascertained again, even if legal firms and patent maximalists prefer not to comment on it (as it would give this latest decision more visibility)

THE latest decision (see portions above) from the Court of Appeals for the Federal Circuit (CAFC) is eye-catching, but either it hasn't caught the eye of legal firms or they're just trying to ignore it, so we'll be covering it more than we usually cover such decisions. We have made a local copy [PDF] (original here) of the full decision. We also mentioned it earlier today and yesterday, reaffirming that several software patents are dead, potentially implicating many more (by precedence/extrapolation).



Jan Wildeboer wrote to us (and few others) [1, 2]: "Wow! Software patents can violate #1stamendment according to #CAFC judge! [...] Can't get enough. Judge defines patent trolls. #CAFC level. Huge. Page 36..."

Some people are also writing to us about it in our IRC channels today. They want this subject covered.

Where is the news coverage about it? It has been several days since this decision and patent law firms are still a month behind the times (McRO again), obsessing over very old news. Consider as a new example Sterne Kessler Goldstein & Fox's "Patent Rights in the U.S.: Is the Pendulum Finally Swinging Back to Center?" (earlier today)

They speak about McRO while ignoring everything that has happened since. Shame on them. It seems as though bad legal advice from patent law firms is becoming the norm. They mislead scientists for cash (litigation, patent applications etc.), attempting to convince them that patents on algorithms are still a 'thing' after Alice. One does not even need to sue a company with software patents in order to lose these patents, owing to inter partes reviews (IPRs). The above lawyers reveal their biases with their obligatory rants about PTAB, stating that "PTAB [is] causing uncertainty over validity and enforcement of patents."

We are still waiting to see patent law firms which offer their bogus 'analyses' (if any) of this latest CAFC ruling on software patents; they hope we don't see it, judging by the fact that only Patently-O wrote about it (we covered it this morning). The ruling is very important because it serves to demonstrate a loss for patent trolls and for software patents (or patent trolls that use software patents, which is typical). The decision criticises patent trolling as well.

Judging by this new press release (from Trend Micro, which is itself a patent aggressor, not the patent microcosm), some other companies breathe in relief.

So far, based on our research, only one press article has been published about this decision. It's titled "Here’s Why Software Patents Are in Peril After the Intellectual Ventures Ruling" and it says:

The end may be in sight for software patents—which have long been highly controversial in the tech industry—in the wake of a remarkable appeals court ruling that described such patents as a “deadweight loss on the nation’s economy” and a threat to the First Amendment’s free speech protections.

The ruling, issued on Friday by the U.S. Court of Appeals for the Federal Circuit, found that three patents asserted against anti-virus companies Symantec symc and Trend Micro were invalid because they did not describe a patentable invention. The patents were owned by Intellectual Ventures, which has a notorious reputation in the tech world as a so-called “patent troll,” a phrase that describes firms that buy up old patents and wage lawsuits in order to demand payments from productive companies.

[...]

Software Patents as a Threat to Free Speech



Friday’s ruling is also significant because Judge Mayer eschews the insider baseball language that typically dominates patent law, and addresses patents in the broader context of technology and government monopolies.

Pointing out that intellectual property monopolies can limit free speech, Mayer notes that copyright law has built-in First Amendment protections such as “fair use” and that patent law must include similar safeguards. He suggests that the safeguard comes in the form of a part of the Patent Act, known as “Section 101,” which says some things—including abstract ideas—simply can’t be patented in the first place.


IAM 'magazine' has not said anything about this decision. So much for 'news'; it was so quick to crow about McRO (beating everybody to it), but not a word about Intellectual Ventures? They have just released a new issue of the magazine and this time the Intellectual Ventures troll is not on their main feature/cover page (puff pieces galore); not this time around...

Over at Twitter IAM wrote: "Trolls don't fight it out in the courtroom. They seek to leverage low quality patents to secure quick licensing wins" (does not mention Intellectual Ventures)

Funny that IAM mentions the VirnetX case but not Intellectual Ventures, which speaks directly to IAM. This case was actually mentioned here twice in the past few days alone and it was challenged in court. David Kravets wrote about it, publishing this article that clarifies Texan courts (i.e. notorious bias) ruled on it, not CAFC:

An East Texas jury concluded late Friday that Apple must pay a patent troll $302.4 million in damages for infringing two patents connected to Apple's FaceTime communication application.

The verdict is the third in the long-running case in which two earlier verdicts were overturned—one on appeal and the other by the Tyler, Texas federal judge presiding over the 6-year-long litigation.

The latest outcome is certain to renew the same legal arguments that were made in the earlier cases: Apple, for one, has maintained all along that the evidence doesn't support infringement. VirnetX, as it did in the past and is now doing, is seeking more damages for what it says is "willful" infringement on Apple's part. What's more, in the previous litigation, the Nevada patent-holding company had asked the judge to shutter the Apple service at issue. Apple has maintained that such a demand was made "So that it can be used to extract a massive licensing fee."

The case began with four of VirnetX's patents (1, 2, 3, 4), which had originated at a company called Science Applications International Corporation, or SAIC. VirnetX has been saying for years that it plans to market various products, but its income comes from licensing patents.


If Apple can escalate this upwards, then a court like CAFC would quite likely invalidate the patents, as usual. The higher one goes (in the courts/legal system), the less room for mischief and leeway for software patents. It's a shame that courts lower down don't obey rulings that are handed from above, especially courts that are based in Texas.

Comments

Recent Techrights' Posts

GNU/Linux up to 5% in Ireland, Not Counting Chromebooks
statCounter is an Irish
The War on Free Software Reporters - Part III - Doxing and LARPing
LARPing is an issue I've had to deal with for nearly 20 years
The Media Finally Admits (on a Regular Basis) That LLMs Suck
They could not replace medical doctors, teachers, lawyers etc.
 
statCounter: GNU/Linux on More Than 1 in 5 Desktops/Laptops
Desktop Operating System Market Share Norway
Reminder: The First CEO of IBM (Owner of Red Hat) Was "Convicted on Extortion" (According to Edwin Black, Author of "IBM and the Holocaust")
Red Hat is not a liberal company
An Important Goal Has Been Accomplished Already
Stubborn activists need to insist on a future where computer users actually control the computers they own
GNU/Linux Market Share in Turkey Now Exceeds 10%, According to StatCounter
StatCounter (or statCounter) shows considerable increases
GNU/Linux in Germany: The Seven Percent
The historical data shows that it wasn't always like this
Slovenia: Windows Becomes Minority Market Share This Month
It finally happened. Android is now measured as bigger than Windows.
statCounter: Bing Has Lost Market Share Since the Chatbot Hype, in Europe Yandex Nearly Exceeds Bing Now
Bing also had many layoffs (not that the media bothered covering that); we must debunk Microsoft's baseless claims and deliberate lies/hype
Microsoft Windows Falls Below 10% in Africa, Down to About 20% in Asia
The future isn't Windows
Taiwan Can Defend Its Autonomy Better by Avoiding Microsoft (Back Doors)
Maybe it's just a coincidence that GNU/Linux "took off" when Hong Kong lost its perceived independence from China
The War on Free Software Reporters - Part IV - Impersonation and Menacing Behaviour, Defamation Under One's Own Name
Such serial defamation (that went on for a very long time) is coordinated and relentless
Links 02/06/2024: Workers' Strikes and a Warming World
Links for the day
Microsoft Falls to All-Time Low of 25% in Operating Systems
If Android is counted, Windows is in trouble as it's down to all-time low of 25%
Steam Survey: GNU/Linux Up, But Canonical's Ubuntu Declining
big increases for GNU/Linux, Arch Linux gaining at Ubuntu's expense
Guardian Digital, Inc (linuxsecurity.com) Leveraging Microsoft Chatbots to SPAM for Microsoft (Googlebombing "Linux")?
Welcome to the Web in 2024. Search for "Linux" news, get Windows garbage.
Smallest Number of New Debian Developers in More Than 2 Years
Maybe Debian should recognise there's a problem instead of trying to censor - at humongous expense - those who speak about the problem
Slashdot's "Linux" Section is Reposting Press Releases for Red Hat
Is this being paid for?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 01, 2024
IRC logs for Saturday, June 01, 2024
Links 01/06/2024: Microsoft Chaffbot Broken Out of Control
Links for the day
Why We're Taking Things Up a Notch
Expect about 20 articles a day this year
Sites That Cover WSL Are Helping Microsoft's Attack on GNU/Linux
Calling out the typical culprits
Plans for June
We'll try to publish Daily Links every time we have enough of these
Links 01/06/2024: Ukraine Updates, MongoDB Collapses
Links for the day
Gemini Links 01/06/2024: MNT Pocket Reform, Gemini and Content Length
Links for the day
Links 01/06/2024: WeblogPoMo2024, Pentagon’s Increasing Reliance on (i.e. Bailouts to) Microsoft
Links for the day
Twitter is (in Many Ways) Already Dead
Put an 'X' on it
Posts About Free Software, BSD, and GNU/Linux
Focus shifts have occasionally been discussed here over the years
After Softpedia Pushed Out Its Linux News Editor - and Effectively Killed the Linux Section - it Killed the Whole News Section (Altogether)
So they've killed Linux coverage, then their whole "news" section died
Their Goal is Control, Not Security (and Their Staff Advocates Fake Security or Pricey Gimmicks That Disempower the Users)
Those companies just want control, or simply domination over users (and their computers)
[Meme] The Lowest Standards of Security
No need for any qualifications
IRC Proceedings: Friday, May 31, 2024
IRC logs for Friday, May 31, 2024
Over at Tux Machines...
GNU/Linux news for the past day
Cybersecurity is a structural not behavioural problem.
Reprinted with permission from Cyber|Show
Free Software is the Future, Open Source is Just Openwashing (Proprietary With a False Marketing Twist)
Also see postopen.org
Society Has Been Destabilised by Social Control Networks
Is it time to get rid of them, if not by sanctions/bans then simply by popular boycotts?
Gemini Turns 5 This Month
As long as Geminispace exists and is accessed by enough people, Gemini Protocol will continue to matter
Links 01/06/2024: More Crackdowns in Hong Kong, Street Named After Navalny
Links for the day
The War on Free Software Reporters - Part II - Antisocial Mobs
how various GNU/Linux bloggers got "canceled" over the years
Microsoft's Share of Physical Web Servers Fell From 9.14% to 9.04% in One Month
What's interesting to us is how Microsoft continues moving down in everything measured
Links 31/05/2024: Escalations in Ukraine and Russia, National Reporter's Shield Law in US
Links for the day
Links 31/05/2024: Generating and Using Identifiers, Why Unicode
Links for the day
A 3-Year Campaign to Coerce/Intimidate Us Into Censorship: In Summary
Some high-profile examples of defamation include Linus Torvalds, Richard Stallman...
[Meme] Never "Missing Out" in FOSS Conferences
The sexists who objectify women and bully women are going to FOSS events in pursuit of sex, according to themselves
Racism, Ageism, and Ableism at IBM/Red Hat and Kyndryl
IBM's Kyndryl is now accused of "racial, age, disability discrimination"
The War on Free Software Reporters - Part I - Why Techrights Cannot be Censored (and Won't be Censored)
Microsoft remains by far the biggest culprit
In Spite of Boot-locking (Trying to Make It Hard If Not Impossible to Install BSDs and GNU/Linux on New PCs) Microsoft's Grip is Rapidly Slipping
Escaping the Microsoft prison
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 30, 2024
IRC logs for Thursday, May 30, 2024
Microsoft's Problem in Puerto Rico
Notice how much Windows has fallen
Gemini Links 31/05/2024: MNT Pocket Reform and Benben v0.5.0
Links for the day
"I once preached peaceful coexistence with Windows. You may laugh at my expense -- I deserve it." -Be's CEO Jean-Louis Gassée
Execution of Red Hat: But I helped promote Azure and .NET
In Many Countries Vista 11's Market Share Goes Down, Not Up (Even Microsoft-Funded Mainstream Media Admits This)
More people are moving to GNU/Linux