EditorsAbout the SiteComes vs. MicrosoftUsing This Web SiteSite ArchivesCredibility IndexOOXMLOpenDocumentPatentsNovellNews DigestSite NewsRSS


Patent Lawyers Fail to Grasp That Software Ideas Rather Than Code Are Abstract and Hence Cannot Endure a Proper Court’s Test

Posted in Courtroom, Deception, Patents at 11:27 am by Dr. Roy Schestowitz

The LLP echo chamber


Summary: Heaps of editorials and analyses from patent-centric firms pretend that nothing has changed after the Supreme Court abolished patents on “abstract ideas” (as opposed to working implementations)

POTENTIALLY substantial patent changes are afoot, especially owing to a decision from SCOTUS. A new article by Timothy B. Lee chastises this court for not understanding technology, which is a typical problem with judges. “The Supreme Court doesn’t understand software, and that’s a problem,” says Lee. “Patent litigation has become a huge problem for the software industry. And on Thursday, the Supreme Court could have solved that problem with the stroke of a pen. Precedents dating back to the 1970s place strict limits on software patents. The court could have clearly reiterated that those old precedents still apply, and that they rule out most patents on software.

“Instead, perhaps fearing the backlash from invalidating billions of dollars worth of patents, the court took an incremental approach. It ruled that the specific patent at issue in the case was invalid. But it didn’t articulate any clear rules for software patents more generally. In effect, the court kicked the can down the road, leaving a huge question mark floating over most software patents.”

SCOTUS can hardly distinguish between UML, pseudo code, and source code. The ambiguities left behind are already being exploited by patent lawyers and here is a new example from Akin Gump Strauss Hauer & Feld LLP, another from Sterne, Kessler, Goldstein & Fox P.L.L.C., and one from Choate Hall & Stewart LLP, to name just three (these flood the media these days, day after day). Well, at first came lots of media reports (written by journalists) declaring a lot of software patents dead and later came (and still comes) the flood of “analyses” by lawyers, rewriting the history to assure their clients that it is worth patenting software and that nothing has really changed.

In recent days we found more examples from Proskauer Rose LLP, saying that “Applying this rationale, the Court found that the claims at issue recited computer steps that are “purely conventional” and a “basic function[] of a computer.”15 The Supreme Court therefore affirmed the Federal Circuit and held the claims were ineligible under § 101.”

The SCOTUS decision was too weak in some sense and law firms are spinning it in their favour. Here is an example where the title says “Supreme Court silent on general eligibility of software patents” (not entirely true). Cooley LLP , Fenwick & West LLP, Seyfarth Shaw LLP and Lathrop & Gage LLP also try to assure their clients that patenting more algorithms is OK, as if nothing has changed. “Although the Court’s decision provides some clarity concerning the inventive effect of reciting computer implementation within patent claims,” says the last analysis, “there remains some ambiguity concerning how courts will define “abstract ideas” moving forward (indeed, the Court stated that it “need not labor to delimit the precise contours of the ‘abstract ideas’ category in this case”).”

Code is already copyrighted, so one might argue that patenting anything but code would be patenting “abstract ideas”. Suffice to say, this is not what greedy patent lawyers are going to tell customers for whom they produce useless papers that the USPTO almost blindly stamps for approval.

Patent lawyers continue to rely on the ignorance or gullibility among judges (who are themselves lawyers and are rarely technical enough to grasp programming). Perhaps any court that deals with patents should have an imperative to be technical. CAFC, for example, needs to be abolished for being corrupt and also utterly dumb on technology.

Share this post: These icons link to social bookmarking sites where readers can share and discover new web pages.
  • Digg
  • del.icio.us
  • Reddit
  • co.mments
  • DZone
  • email
  • Google Bookmarks
  • LinkedIn
  • NewsVine
  • Print
  • Technorati
  • TwitThis
  • Facebook

If you liked this post, consider subscribing to the RSS feed or join us now at the IRC channels.

Pages that cross-reference this one

A Single Comment

  1. Michael said,

    June 25, 2014 at 4:12 pm


    The idea of, say, using icons as nouns maybe abstract, but it was still a very important jump in the ideas of GUI (one not made at Xerox). Same with using pull down menus and more. The actual code of these things is not that important (though, of course, poorly coded implementations would not work well – there are many ways to code it well).

    So how do you propose these things be protected? Or should companies who work hard on making such innovations not be allowed to protect what they have done, not even for some limited time?

What Else is New

  1. Links 2/10/2015: Qubes 3.0, Linux.Wifatch

    Links for the day

  2. Microsoft-Connected Firm Net Applications Used to Mislead About Vista 10 Share and Mock GNU/Linux

    People who are connected to Microsoft (some being former staff) link to a firm that is connected to Microsoft in order to create the illusion that Vista 10 market share grew to 6.63%

  3. Chairman of the Enlarged Board of Appeal (EBoA) and EPO Vice-President of DG3 Suspiciously on Unlimited Sick Leave After Benoît Battistelli's Unprecedented Attacks on Other EBoA Staff

    Rumours suggest that Benoît Battistelli's affairs at the EPO may have something to do with Wim Van der Eijk's longterm absence

  4. Microsoft's Secret Special Relationship With EPO Illustrates Serious Corruption at Microsoft and the EPO

    A big story about the EPO and Microsoft working in a sort of collusion-type setup so as to serve Microsoft's patent agenda, which involves aggression, even against European software that is Free (as in freedom)

  5. Links 1/10/2015: LFS 7.8, Calculate Linux 15 Released

    Links for the day

  6. The 'Microsoft Loves Linux' Baloney is Still Being Floated in the Media While Microsoft Attacks Linux With Patents, New Lawsuits Reported

    Despite Microsoft's continued assault on Linux and on Android (using software patents, which it still discreetly lobbies for), some figures in the media are perpetually peddling the Microsoft-serving lie that 'Microsoft loves Linux'

  7. The Microsoft Botnet Goes Bonkers and ATMs Running Windows Spew Out Cash

    The terrible security (by design) of Microsoft Windows is causing all sorts of very serious and collectively expensive issues

  8. Black Duck Continues to Pile FUD on Free/Libre Software

    Having spent nearly a decade promoting the fear of Free software licensing, Black Duck now does the same regarding Free software security<

  9. Links 30/9/2015: New Kernels, Nexus Devices

    Links for the day

  10. Links 28/9/2015: Last News Catchup Before Resumption

    Links for the day

  11. Links 25/9/2015: GNU/Linux in Indian Government, NeoKylin in China

    Links for the day

  12. Süddeutsche Zeitung Explains Imminent Federal Scrutiny Against Battistelli's EPO in Germany

    The German newspaper Süddeutsche Zeitung reveals that actions by the German government may be imminent against the EPO's cliquish management, including its ringleader Benoît Battistelli

  13. EPO Managers, Patent Lawyers, Commissioners and Other Non-Technical Personnel Tackle Democracy, Alter Laws in Bulk and in Secret

    The reckless assault on European democracies and long-established laws across Europe are now lucidly demonstrated when it comes to patents

  14. Europe's Acceptance of and Resistance to Software Patents, Courtesy of Corporate Front Groups and Courtrooms Respectively

    A snapshot of recent developments and upcoming developments in Europe, regarding software patents in particular

  15. German Press Explains EPO Investigation Unit (I.U.), Struggles to Openly Speak to the Secretive EPO

    The secretive Investigation/Investigative Unit (I.U.) of the European Patent Office (EPO) is further studied/explored by a recent article from junge Welt, an old and well-established German newspaper (since 1947)

  16. Links 24/9/2015: GNOME 3.18, Fedora 23 Beta, New Firefox

    Links for the day

  17. Translation Needed of Article About EPO Threats Against SUEPO's Elizabeth Hardon

    A call for translation of an important article that may help shed light on the modus operandi of the Investigation/Investigative Unit of the EPO, which works with Control Risks Group (CRG), the 'British Blackwater'

  18. Media Filled With Spin and Lies Amid Microsoft's Admission of Internal Usage (and Modification) of GNU/Linux

    Further analysis of Microsoft's admission that it uses Linux internally and the media's poorly-researched response to that

  19. EPO Management Justifies Censorship (Even of Journalists) Using Its Vice-President Željko Topić

    The Topić connection to EPO-imposed and universally-induced censorship not just of news sites but also sites which speak about the censorship itself, or dare question the integrity of the EPO's management

  20. Changes at Techrights

    A few short notes on how we are going to re-align the site with disruptive trends, notably patents-related

  21. EPO President Benoît Battistelli Compared to Famous Criminals on European Television

    The Belgian TV network featured a show which was making fun of Battistelli earlier this month

  22. Dutch Politician John Kerstens Says EPO Investigative Unit is Called ‘the Gestapo’

    The infamous Investigation Unit (I.U.), which secretly bullies staff of the EPO with notorious interrogation techniques under virtually no oversight, is described on Dutch radio

  23. The European Patent Office's Autocracy Has Proven the Streisand Effect, Amplifying Its Opposition's Messages

    The management of the European Patent Office (EPO) is still trying to suppress negative messages about managerial failures, violations and abuses, thereby serving to only increase media coverage (newspapers, radio, television) of increasingly well-known and widely-covered scandals

  24. IBM is Again Attacking Free/Libre Open Source Software by Pushing for Patents on Software

    A timely reminder that Big Blue is no true friend of GNU/Linux and other Free software projects, just an opportunist that uses the Linux brand and wants to make the platform a commodity (for servers that run IBM's proprietary software and use IBM-branded hardware)

  25. Windows is Dying, Based on my Conversations With Microsoft Windows Staff

    The arrival of Vista 10 heralds the continuation of a trend that Vista 8 cemented, namely an inevitable demise of Microsoft's common carrier (and formerly cash cow), Windows

  26. Microsoft Claims to Have Built 'Windows' on Top of Linux, But Where is the Source Code (GPL)?

    Microsoft cannot rely on Windows anymore, so it takes GNU/Linux code and puts its own brand on it, without even releasing the changes (as per the GPL's requirements)

  27. Dutch Report: EPO Suicides Possibly Caused by Working Conditions Imposed by EPO's Management

    More press coverage about the terrible situation at the European Patent Office

  28. Links 21/9/2015: Tizen 3.0, Red Hat's Results Coming

    Links for the day

  29. European Patent Office Expands Censorship and Intimidation Against Staff as Pressure Mounts

    The management of the European Patent Office (EPO) continues to increase its repressive assaults on EPO staff, essentially blocking access to additional sites which explain what the EPO is really doing and why this is wrong

  30. Patents Roundup: Europe's and India's Software Patents Affair, US Continues to Demote Software Patents With Alice Case

    A roundup of news of interest regarding patents, especially software patents whose impact on Free/Open Source software is exceptionally profound


RSS 64x64RSS Feed: subscribe to the RSS feed for regular updates

Home iconSite Wiki: You can improve this site by helping the extension of the site's content

Home iconSite Home: Background about the site and some key features in the front page

Chat iconIRC Channel: Come and chat with us in real time


Recent Posts