Diagnosis From USA Federal Circuit – Software Patents Are Sick

“Let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents.”
see Groklaw – Federal Circuit, en banc, rules in CLS Bank

Quoting from the ruling, ” It is also important to recognize that § 101, while far-reaching, only addresses patent eligibility, not overall patentability. The statute directs that an invention that falls within one of its four enumerated categories “may” qualify for a patent; thus, inventions that are patent eligible are not necessarily patentable. As § 101 itself explains, the ultimate question of patentability turns on whether, in addition to presenting a patent-eligible inven-tion, the inventor also satisfies “the conditions and requirements of this title,” namely, the novelty, nonobvi-ousness, and disclosure requirements of 35 U.S.C. §§ 102, 103, and 112, among others. See 35 U.S.C. § 101.”

Of course, if a computer can “understand” a piece of software that software surely must be “obvious”… chuckle.

” The computer-based limitations recited in the system claims here cannot support any meaningful distinction from the computer-based limitations that failed to supply an “inventive concept” to the related method claims. The shadow record and transaction limitations in Alice’s method claims require “a computer,” CLS Bank, 768 F. Supp. 2d at 236, evidently capable of calculation, storage, and data exchange. The system claims are little different. They set forth the same steps for performing third-party intermediation and provide for computer implementation at an incrementally reduced, though still striking level of generality. Instead of wholly implied computer limitations, the system claims recite a handful of computer components in generic, functional terms that would encompass any device capable of performing the same ubiquitous calculation, storage, and connectivity functions required by the method claims.”

Yup. Merely needing a computer to do the thing doesn’t make it patentable. Chuckle.

” Therefore, as with the asserted method claims, 4 such limitations are not actually limiting in the sense required
under § 101; they provide no significant “inventive concept.” The system claims are instead akin to stating the abstract idea of third-party intermediation and adding the words: “apply it” on a computer. See Mayo, 132 S. Ct.at 1294. That is not sufficient for patent eligibility, and the system claims before us fail to define patent-eligible subject matter under § 101, just as do the method and computer-readable medium claims.”

ROFL!!!

“The question we must consider is whether a patent claim that ostensibly describes such a system on its face represents something more than an abstract idea in legal substance. Claims to computers were, and still are, eligible for patent. No question should have arisen concerning the eligibility of claims to basic computer hardware under § 101 when such devices were first invented. But we are living and judging now (or at least as of the patents’ priority dates), and have before us not the patent eligibility of specific types of computers or computer components, but computers that have routinely been adapted by software consisting of abstract ideas, and claimed as such, to do all sorts of tasks that formerly were performed by humans. And the Supreme Court has told us that, while avoiding confusion between § 101 and §§ 102 and 103, merely adding existing computer technology to abstract ideas–mental steps–does not as a matter of substance convert an abstract idea into a machine.”

WHOOHOO!!! BINGO!

For those unable to parse the legalese, I will paraphrase: “You can’t reinvent painting a work of art by doing it with a paint-brush.”

“We are faced with abstract methods coupled with computers adapted to perform those methods. And that is the fallacy of relying on Alappat, as the concurrence in part does. Not only has the world of technology changed, but the legal world has changed. The Supreme Court has spoken since Alappat on the question of patent eligibility, and we must take note of that change. Abstract methods do not become patent-eligible machines by being clothed in computer language. “

Isn’t that a hoot? Can you hear the patent-FUD rushing out of M$’s collapsing balloon? Can you hear the “partners” who have signed up to pay M$ per Android/Linux smart thingy calling their lawyers and accountants? Can you see the small cheap computers becoming even less expensive? I can.

About Robert Pogson

I am a retired teacher in Canada. I taught in the subject areas where I have worked for almost forty years: maths, physics, chemistry and computers. I love hunting, fishing, picking berries and mushrooms, too.
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31 Responses to Diagnosis From USA Federal Circuit – Software Patents Are Sick

  1. bw says:

    “You just picked the wrong university if you patent lawyer is Harvard trained he could have just completely missed the Common law requirements. Because his course did not cover it.”

    Well, thank you for that insight! I have often suspected that there was something amiss in the world. I am chagrined that such a critical discovery had to come from someone so unwashed as yourself. My hat is off!

  2. oiaohm says:

    bw
    –Do you think that Harvard Law has overlooked this bit of knowledge? Too bad they don’t have you on staff to advise them. Moron.–

    Harvard Law courses on Patent law fail to cover the Common law that effects Contracts.

    Yale on the other hand does include Common law over contract and requirements in there legal course for patent lawyers.

    You just picked the wrong university if you patent lawyer is Harvard trained he could have just completely missed the Common law requirements. Because his course did not cover it.

    Right lawyer for right task bw. Lot of companies have just employee patent lawyers and are lacking the common law lawyer. Yes patent lawyers are good for drafting and submitting patents and validating your stock pile of patents against current rulings. Common law lawyers are the ones you want writing contracts to sell those patents.

    Now the problem is Patent only lawyers drafting contracts. Yes a common law lawyer will tell you on going fee equals on going responsibility.

    bw
    –Patents ultimately protect little guys, I think, but these little guys are not really deserving of any such protection since what they are inventing isn’t all that innovative.–
    Patents are common used to crush the little guy inventors.

    Really all the Patents help is the little guy troll. Who does not invent or make anything.

  3. Ivan says:

    Are you so arrogant as to really think that your analysis is better than the legions of lawyers and techies in the companies involved who have come to far different conclusions?

    Bob’s not arrogant, he is just the perfect example of the Dunning-Kruger effect. You get that a lot from people that read Groklaw.

  4. bw says:

    “Lot of companies have not sat down and read the basic common law covering renting or on-going supply of a item. Yes it bring legal requirements.”

    Do you think that Harvard Law has overlooked this bit of knowledge? Too bad they don’t have you on staff to advise them. Moron.

  5. bw says:

    “Read the damned thing! Here, let me help you!”

    I saw that part, but what I was saying was that there doesn’t seem to be any such recognition of that in the industry. What the judges may think is interesting, but is anyone going to change their ways of doing business?

    I had posted a couple of days ago about my views on these patents, but it never got attached to the thread, so I’ll repeat it here.

    I more or less agree with you that these patents are things that should be done away with and are not doing anything to promote technology development. They only seem to show up as threats to legitimate businesses that put blocks in the road and allow relatively unworthy organizations to siphon off money from the companies who are actively trying to sell better and better products.

    Most all of these patents represent engineering solutions to steps along some normal development path and should not be patentable due to the obvious nature of the solution. An engineer finds a problem and solves it in a straightforward way and discloses the problem and gets a patent for the solution. The only thing that is unique is who was the first to need to solve the problem. Other developers will solve a similar problem in a similar way and get a similar patent and maybe someday the two companies will fight over who actually “owns” the technology. No one benefited from either patent in terms of fostering further development. Rather the process slows development due to the hassle of these patent searches and claims making.

    Unfortunately, what is obvious to any engineer designing solution is not obvious to patent examiners and legal staff in corporations who are interested in building a portfolio for trading purposes, so these patents continue to issue and continue to clog up the system.

    I don’t think that this particular case is going to change any of that, though, even though I would be happy if it did.

    One thing that you should realize is that Microsoft has been damaged more by these patents than they have been helped by the ones that went their way. For example, Stac Electronics years ago bought a patent on data compression in a PC and created a software product that became fairly popular. Microsoft bought a different patent and came out with the data compression built into MSDOS which under cut Stac’s market. Stac sued, eventually winning a hundred million or so, but they were discovered to have reverse engineered Microsoft proprietary code involved in processing memory accesses which were needed to let Stac’s stuff work, but the reverse engineering was found to violate Microsoft trade secrets and so Stac could not use it and so were out of business. This led to a Mexican standoff that was eventually settled and Stac went away with about 80 million and Microsoft went on with shipping MSDOS with data compression built-in and even worked with Stac’s algorithms. If the software patents were all gone, Microsoft could have saved $80M.

    Patents ultimately protect little guys, I think, but these little guys are not really deserving of any such protection since what they are inventing isn’t all that innovative.

  6. oiaohm says:

    bw we are talking a very huge shoe just dropped.

    The question is how many patents does Microsoft have left that pass the solid defined rules.

    SCOTUS (Supreme Court of the United States) yep this is something bw misses. They are still writing the patent rule book. Microsoft is playing in a game where the rule book is being altered on the fly. This is why Microsoft and other parties licensing contracts are so risky.

    Until you license a patent with an on going fee you have no responsibility to have it true or correct.

    Lot of companies have not sat down and read the basic common law covering renting or on-going supply of a item. Yes it bring legal requirements.

    Patent trolls have in fact been doing the smart thing. Once off fees.

  7. bw wrote, “Is there anything anywhere else citing this case as a landmark decision that will revolutionize patent law? Nope.”

    Read the damned thing! Here, let me help you!
    “causing a free fall in the patent system. The Supreme Court has taken a number of our recent decisions and, in each instance, concluded that the claims at issue were not patent-eligible. See Bilski, Prometheus, Myriad (under
    consideration). Today, several of my colleagues would take that precedent significantly further, lumping togeth-
    er the asserted method, media, and system claims, and holding that they are all patent-ineligible under § 101.
    Holding that all of these claims are directed to no more than an abstract idea gives staggering breadth to what is
    meant to be a narrow judicial exception. And let’s be clear: if all of these claims, including the system claims, are not patent-eligible,
    this case is the death of hundreds of thousands of patents, including all business method,
    financial system, and software patents
    as well as many computer implemented and telecommunications patents.”

    (I’ve highlighted part for you…)

    That’s from a dissent by one of the presiding judges, MOORE, Circuit Judge, in which RADER, Chief Judge, and LINN and O’MALLEY, Circuit Judges, join. So, nearly half the judges say this is a very important case. This dissent, alone, may make the case irresistible to SCOTUS.

  8. oiaohm wrote, “Landmark decisions in patent law never show straight away.”

    SCOTUS (Supreme Court of the United States) has been dancing around software patents for a while. This case could prompt them to kick software patents into the trash-heap. The ruling is pretty solid despite the disunity of the judges. The supremes could polish it off. Up until now, the Federal Circuit court has been pretty lenient on patents. This case shows that Bilski has clarified some issues. I would bet SCOTUS would love to put their stamp on this case to settle the issues.

    Software patents should never have issued. Software is covered by copyright and properly so.

  9. oiaohm says:

    bw what I am describing the base contract and patent law.

    Every time there is a patent ruling like the current. There is a shock-wave of rule changes. At this point all patent holders have to check what its changed.

    –Is there anything anywhere else citing this case as a landmark decision that will revolutionize patent law?–

    Landmark decisions in patent law never show straight away.

    In fact it is a form of Landmark. Just you need to read it more carefully. bw it says all computer patents have to be compared to all non computer patents/prior art.

    Landmark change is opening up where you can pull prior examples from to void a software patent.

    So now how many Microsoft patents still valid. What to lay bets.

  10. bw says:

    “Of course as long as the design the deals right the will be able to claim the money back in future when it will be most harmful”

    Buckley’s chance you got that such a big mob of bull dust will ever come good. Give it away. You’ve got too many kangaroos loose in the top paddock.

  11. bw says:

    “The legal side is simple”

    Not simple enough, apparently, for you to have any understanding of it.

    Look at the resources that you have for your argument. There is one amateur posting on Groklaw that doesn’t even say what you are suggesting. Is there anything anywhere else citing this case as a landmark decision that will revolutionize patent law? Nope.

    Why are the experts in the world silent on all this and only you unlearned folk, desperate for bad news about Microsoft and rarely getting wind of any, so convinced that salvation is at hand?

    Guess what? Microsoft’s domination of the PC OS software, server, and office automation software businesses does not depend on their patents and is not going to suffer one bit from any findings, which have not occurred and are not even pending, that any of their patents are invalid.

    Such a finding must still be the result of a legal process that very few litigants are even interested in taking. Wake me up when one of Microsoft’s patents is being attacked again.

  12. oiaohm says:

    bw –They are paying more than a billion dollars for the privilege of using these patented methods. Are you sure they are such fools?–

    Mostly because its simpler than the disruption to trade. Not because the patented methods are valid.

    Of course as long as the design the deals right the will be able to claim the money back in future when it will be most harmful.

  13. bw says:

    “As far as I know the only patent Android/Linux might touch is exFAT. No OEM needs to license the whole fleet of M$’s patents.”

    Are you so arrogant as to really think that your analysis is better than the legions of lawyers and techies in the companies involved who have come to far different conclusions? They are paying more than a billion dollars for the privilege of using these patented methods. Are you sure they are such fools?

  14. oiaohm says:

    “The patents were then and remain valid and there is no element of fraud involved.”

    bw you said the key words. “Remain valid”. If by the ruling changes they are voided Microsoft is straight in trouble from the point that ruling happens. Note it does not have to be on the patent itself. It what is an acceptable patent.

    This is the problem with patents and long term payments. The rules of what is valid is constantly changing what is acceptable and it the party holding the patent who is responsible to void them in case of rule change not the buyer.

    Samsung patent provides Microsoft with some hardware patents that are used inside the xbox and other hardware items Microsoft makes.

    Samsung is not at risk of providing nothing.

    “right to use any relevant Microsoft-patented technology”

    In fact by common law if samsung is not using any Microsoft-patented technology in a particular device its fraud. This was the same problem with having OEM’s pay Microsoft for every computer made if it contained Microsoft software or not.

    bw a voided contract by contract law becomes that it has to be reversed. Now if Microsoft wakes up to the issue goes to Samsung first and say hey we cannot charge you for the following patents any more. The void event can be avoid.

    The legal side is simple. You cannot charge for nothing. If you find out you are charging for nothing and correct no foul. If you want for the person you are charging to take offence ouch refund complete contract.

  15. bw writes as if he had read the agreements. I doubt he has. As far as I know the only patent Android/Linux might touch is exFAT. No OEM needs to license the whole fleet of M$’s patents.

  16. bw says:

    “Fraud is not a legal purpose.”

    I guess that is some sort of truism, but there is no fraud here. Samsung, for example, agreed to make certain payments to Microsoft in exchange for the right to use any relevant Microsoft-patented technology and Microsoft obtained reciprocal rights to some Samsung patent use for specified purposes. The patents were then and remain valid and there is no element of fraud involved.

    “This is the problem if Microsoft is proven to be supplying nothing and should have know they where supplying nothing in court they have to refund the full value of the contract over its life span with interest and count costs.”

    lol. Oiaohm, you are an incredible moron. More so for your non-stop spates of verbal diarrhea. Does it take you a while to dream up these tortured chains or do they flow naturally?

  17. oiaohm says:

    bw just to be clear. Contracting to supply nothing is Fraud and illegal.

    This is the problem. Change in patent law rules will result in a lot of companies charging on going charges for patents in a location of being paid for supplying nothing.

    Lot of Patent Trolls are smart they take one huge upfront payment no on going changes so never end up in the common law trap of fraud of being paid to supplying nothing.

    This common law fraud trigger is the only way a contract for payment for patent usage can be refunded. As long as you have 1 supplied patent you are fine.

    Android is a bugger because its open source. Microsoft as the landlord renting the patents is fully free to inspect and know what of their patents apply so should also know when supplying nothing has started.

    If android was closed source Microsoft would have the black box defence.

    bw being open source effects patent disputes in bad ways for patent holders. The don’t know arguement does not apply.

  18. bw wrote, “They are not written with any contingency on the patents’ validity.”

    A contract can only be for a legal purpose. Fraud is not a legal purpose.

  19. oiaohm says:

    bw –An accurate example is where you contract to buy a house and after the property is transferred, it burns down. You cannot get your money back. The contracts to use Microsoft patented technology are signed and are in effect. They are not written with any contingency on the patents’ validity.–

    You have a problem contract law does not allow that with an on-going charge. Remember Microsoft is charging per device made. So its closer to a rental than a direct sale. Just like a rental Microsoft has a requirement to maintain what they are supplying while being paid.

    –They are not written with any contingency on the patents’ validity.–

    Retail form agreements don’t have to state validity of item being provided. The validity of provided item is required by common law.

    bw in this case even Microsoft has written in a clause that says validity of patents don’t apply common law overrules. Validity of individual patents don’t apply can be written in. You cannot by contract by common law be paid for supplying nothing. This is the problem if Microsoft is proven to be supplying nothing and should have know they where supplying nothing in court they have to refund the full value of the contract over its life span with interest and count costs.

    What has just happened is O crap to a lot of people licensing patents to other people.

    Its not just Microsoft in the cooker here. Its everyone providing software only patents.

  20. bw says:

    “Note my example”

    Why? It was a stupid example, poorly framed, and not pertinent. You only manage to demonstrate that you do not understand the issues here.

    An accurate example is where you contract to buy a house and after the property is transferred, it burns down. You cannot get your money back. The contracts to use Microsoft patented technology are signed and are in effect. They are not written with any contingency on the patents’ validity.

  21. bw says:

    “M$, certainly knows or ought to know that software patents are dead on the basis of this finding.M$, certainly knows or ought to know that software patents are dead on the basis of this finding.”

    What finding? Your cite goes on:

    “But Julie Samuels, an intellectual property lawyer with the Electronic Frontier Foundation, said the ruling gives little guidance to courts on patent eligibility. While judges on the court agreed Alice’s patents weren’t valid, they agreed on little else, she said.”

    You have a law degree from a better school than Julie? I don’t think so.

  22. oiaohm says:

    bw –You are hardly one to decide on how laws might work and certainly you are not privy to the actual contracts that have been signed regarding payments for use of Microsoft technology within Android devices.–

    What technology bw. Microsoft did not write any code used in Android. Only claim is the patents. Once Microsoft knows they are void. The law applies.

    Even in a contract that says all future patents.

    –The patents exist. Just look at the USPTO site and search for “Microsoft”.–

    Fraud still applies. Note my example. You selling house on block to someone. For some reason house is destroyed outside either parties control while the sales contract is on going. The contract voids.

    Examples of this that match up to Microsoft patent contracts. Is rent buy contacts. Microsoft patent agreements are a rent agreement because they require all going payments. Microsoft did not take a once off fee.

    –Whether or not they can be successfully asserted is a matter for the lawyers and judges and even juries to consider.–
    To be correct no. Patent types in the past have been forbin as well. In that those cases the requirement is on the patent holder to find out and withdraw patent. Failure to withdraw patent that you are charging others for that is been made legally invalid by law change is fraud.

    So if it does get before lawyers, judges and juries in this case we are talking damages.

    Register a bogus patent that the other party cannot prove as by reasonable knowledge bogus is a no foul offence. Problem becomes once the party you are licensing to can prove that.

    Change in patent law killing a patent type is classed as reasonable knowledge.

    Yes common law comes into effect. The contract goes void because its entered a state of fraud. Is it up to the third parties Microsoft to have the contract with to find out by law. No its not. Its up to Microsoft to find out. If the third parties find out before Microsoft owes damages and possibly has to return every cent with interest acquired under the contract.

    Yes not killing a fraud contract before the law catches up is hazard. Microsoft choosing to kill the contract then Microsoft gets to keep all the money collected to the point the patents become non enforceable.

  23. lpbbear says:

    Most software patents have been ridiculous remakes of long existing functions. For instance the idea that turning a “page” in a ereader is somehow unique and deserving of a patent just because the age old idea of turning a page has been adapted to an electronic computing device. A lot of patents I have seen mentioned in many of the completely frivolous lawsuits being used as ways to attack competitors are like this. Long existing common functions slathered in legalize and bathed in convoluted descriptions so that they will slide through a patent office too ignorant and back logged to understand what they are allowing a patent on.

  24. oe says:

    Patents on algorithms as well as the biological commons (e.g gene patents, lifeform patents) need to be killed off with prejudice….

  25. bw wrote, “Whether or not they can be successfully asserted is a matter for the lawyers and judges and even juries to consider. The cost of that process is rather high and companies will continue to decide on their own just what they should do optimally in that regard.”

    Whether or not the victims of the patent troll decide to settle or not, the perpetrator, M$, certainly knows or ought to know that software patents are dead on the basis of this finding.

    Wikipedia: “In the United States, common law recognizes nine elements constituting fraud:[8][9]

    1. a representation of an existing fact;
    2. its materiality;
    3. its falsity;
    4. the speaker’s knowledge of its falsity;
    5. the speaker’s intent that it shall be acted upon by the plaintiff;
    6. the plaintiff’s ignorance of its falsity;
    7. the plaintiff’s reliance on the truth of the representation;
    8. the plaintiff’s right to rely upon it; and
      consequent damages suffered by the plaintiff.

    However a court interprets that, M$’s patent-trolling days are over. I assume M$ has lawyers. If they don’t promptly inform M$ of the meaning of this case they are incompetent, so M$ has no deniability. It just takes one victim to sue or the feds to prosecute and Wintel falls down a little more. If the OEMs lack the guts to call M$ on this one, the shareholders of the OEMs will.

  26. bw says:

    “If M$ is proven not to own the subject “patents” because they don’t exist…”

    The patents exist. Just look at the USPTO site and search for “Microsoft”. Whether or not they can be successfully asserted is a matter for the lawyers and judges and even juries to consider. The cost of that process is rather high and companies will continue to decide on their own just what they should do optimally in that regard. Any uncertainty as to the outcome of litigation is just a bargaining chip in the process of negotiating a contract. Both sides come to their own assessment of value.

    The patents that are thought to be in danger here are those that simply define the use of a computer to effect an implementation of a process or method that has already been done in some alternate way. A patent that defines a unique, new way to do something using a computer or any other mechanism remains patentable and anyone wanting to achieve that method’s result has to either do it a different way or come to an agreement with the patent holder.

  27. bw wrote, “The OEM has contractually agreed, for example, to pay Microsoft some amount of money based on some sort of accounting for free use of Microsoft intellectual property, perhaps limited to specific patents, perhaps not.”

    If M$ is proven not to own the subject “patents” because they don’t exist, the contract is fraud and void because it’s an illegal act. Want to make a contract with me to buy the Brooklyn Bridge? It’s in a prime location and gets a lot of traffic. You could become filthy rich… 😉 I would settle for $1 per wheel and you could keep the rest…

  28. bw says:

    “Basic contract law is contact void from the point the item you are supply no longer exists supply.”

    You are hardly one to decide on how laws might work and certainly you are not privy to the actual contracts that have been signed regarding payments for use of Microsoft technology within Android devices. So your comments are so much hot air.

    Are you so arrogant as to think that your uneducated and superficial understanding of this area is likely to trump the language used to create binding contracts by professional lawyers? lol

    What a fool!

  29. oiaohm says:

    To be correct go read patent law and contract law.

    Basic contract law is contact void from the point the item you are supply no longer exists supply.

    Microsoft does not have any hardware patents of any importance.

  30. oiaohm says:

    bw not that simple go read the basics of patent law some time.

    Having a deal on a invalid group of patents. Is like selling a house but the fact it the house has burnt down. What is the result the deal is void and all money has to be refunded technically.

    So if the USA and other areas kill software patents. Microsoft patent income deals go out the window in the same pen stroke.

  31. bw says:

    “Can you hear the “partners” who have signed up to pay M$ per Android/Linux smart thingy calling their lawyers and accountants?”

    I would doubt it. The deals signed by Microsoft and various OEMs are not pre-conditioned on the validity of any particular patent. They are contracts that bind the parties to certain conditions and payments. The OEM has contractually agreed, for example, to pay Microsoft some amount of money based on some sort of accounting for free use of Microsoft intellectual property, perhaps limited to specific patents, perhaps not.

    Certainly the deal was inked based on the OEM’s perceptions of the strength of patent validity and value, but, as they say, “A deal is a deal!”

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