Bonum Certa Men Certa

Growing Resistance to Software Patents in the US While USPTO Expected to Review Subject Matter Eligibility

Pillar



Summary: Signs that the US is turning against software patents, not just against patent trolls which so-called patent reforms strive to tackle

THE UNITED STATES is improving when it comes to patents sanity because scope is being narrowed, especially when it comes to software patents. We wrote over a dozen articles about it, but the media is still full with so-called 'reports' (shameless self-promotion and self service) from patent lawyers, who would deliberately have the public believe that not much has changed. Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients.



"Always remember that patents (as per their mission statement) are supposed to be about publication, innovation, and public interests, not about securing the newly-created jobs of parasitic lawyers and their monopolistic clients."The EFF recently made this good move against software patents, specifically naming software patents as the issue (not "trolls" or "stupid" patents as the EFF habitually addresses the issue).

To quote the EFF: "There are many reasons software patents cause so much trouble. The Patent Office does not do a good job reviewing software patent applications to see if they are claiming something new. And these patents often describe the purported invention with highly vague and ambiguous language. Software patents also tend to claim every way to solve a problem, rather than the particular solution developed by the applicant. This is known as functional claiming. While it may seem like an arcane legal dispute, functional claiming is a key feature of overbroad software patents."

The EFF recently improved its activism in this area, having wasted nearly a decade tackling one patent at a time (so-called 'busting'), talking about patent trolls, or alluding to patents that are "stupid" rather than ones whose class/type/scope makes them illegitimate. Alas, the "Stupid Patent of the Month" series from the EFF continues. It usually names software patents, but does not refer to them as such. Here is the example from a few days ago:

In the Spirit of the Holidays: It’s Not Too Late for Uber to Avoid Stupid Patent of the Month



[...]

Because Uber did just that, Uber is being forewarned of its risk of receiving the Stupid Patent of the Month award. Specifically, Uber has applied for a patent on a form of dynamic pricing, a practice that (even if it didn’t exist before the study of economics) has been heavily in use by various industries, including most famously by airlines, for over 20 years.


Stallman recently published a good list of reasons not to use Uber (the car ride brokering company), but that is a subject for another day. The EFF has provided yet another reason to avoid Uber.

Make no mistake however. The EFF's lawyers are outnumbered by patents-loving lawyers who flood the media with pro-software patents articles (we are reviewing this on a daily basis). The only exception we have found in the past fortnight was Timothy B. Lee, who published the article titled "Software patents are a disaster. The courts finally did something about it in 2014." Here are some opening paragraphs:

For two decades, people in Silicon Valley have been complaining about software patents. People would get patents on broad concepts like checking email wirelessly or scanning documents to an email account, and then sue anyone who happened to stumble across the same concept. Thanks to this kind of frivolous litigation, patents in the software industry may actually be discouraging innovation instead of encouraging it.

But until recently, complaints about excessive patenting of software mostly fell on deaf ears. The patent office issued tens of thousands of new software patents every year, and the courts upheld most of them. Congress showed little interest in addressing the issue.


The fiercest pro-software patents sites refuse to talk about the demise of software patents or even call patent trolls "trolls" (they use other words). What they do care about is the patent reform in the US; yes, even patent lawyers' sites speak about it and some worry about the (rather likely) imminent appointment of Michelle Lee, who is one of them (a lawyer, albeit with a scientific background as a computer scientist). Louis J. Foreman says: "I’m concerned independent inventors, small businesses and the property protections we all depend on are about to become collateral damage as Congress once again tries to crack down on “patent trolls.” The popular definition of a patent troll as used in the congressional debate is a company that doesn’t make any products itself, but that owns patents and tries to make money by accusing other companies of infringement."

We have seen more of that argument elsewhere, basically complaining that patent trolls are not a problem. As one person put it, "obviously, these guys have never been sued by a patent troll...the Wright Brothers...really?"

It was said in reference to this odd article. "Take a look at the website of the 'tech' company 1 of the authors works for," said one person. It sure looks like those who defend trolls are either trolls themselves or those who work with trolls.

In relation to a patent reform this puff piece from The Hill gave a platform the the BSA (Microsoft front group). One relevant part says:

“I think the change in the Senate is a good thing for patent reform,” said Craig Albright, a top lobbyist with BSA | The Software Alliance. “And that change is important for the prospects of getting patent reform done and it’s one of the reasons why we’re optimistic.”


As we have shown before, when Microsoft and its partners speak about patent reform they don't speak about eliminating or limiting software patents, which they love dearly. Here is another new article titled "Patent Reform Likely to Succeed in Next Congress" and further commentary from TechDirt:

As we've noted recently, a series of Supreme Court decisions over the past decade, culminating in the big Alice v. CLS Bank ruling in July, has clearly put a serious crimp on the patent trolling business. Vague, broad, dangerous patents are falling like flies, new patent trolling lawsuits are on the decline and the US Patent Office is rejecting a lot more questionable software and business method patent applications. All good news. But is it enough?



That is pretty much where favourable coverage ends. The biased media of patent lawyers still dominates the news feeds, aided by large corporations' press. Bloomberg, i.e. Wall Street, gives them a platform with which to defend software patents in the wake of Alice v. CLS Bank and blogs of patent maximalists write about it in a self-serving fashion. "Look at those patent guys scared to death about loosing their jobs with the removal of software patents," wrote the FFII's President. There is more where it came from (bypassing limitations), glorification of patents and revisionism (disguised as 'history') about software patents, as noted in an article we published 2 weeks ago. When Gene Quinn talks about history he speaks of a highly modified version that helps patent lawyers fool judges or lawmakers.

A lot of other legal sites, such as Mondaq, Lexology and Law 360 showed their clear bias. Only patent lawyers write there on this topic and it's unsurprisingly biased. Some are willing to acknowledge the fact that software patents are in trouble, but they selective pick cases where software patents endure. To quote an example from today: "In discussing computer software patentability, the court stated outright that "software must be eligible under €§ 101" and that the Supreme Court has implicitly endorsed the patentability of software, including in Alice. Specifically, the court reasoned that patent law must balance between encouraging creation of new computing solutions and protecting against applying established ideas through a computer environment. Caltech, 156 C.D. Cal. at 9095. The court also interpreted Alice as acknowledging the patent eligibility of software if it improves "the functioning of the computer itself" or "any other technology.""

"No, Mr Crouch," insists the FFII's Present, "loading software on a PC does not make it a new machine" (Crouch is one of the most prominent boosters of patents).

Joe Mullin recently showed that not only software patents are dying in the US but patents on genetics too. As Susan Decker from Bloomberg put it: "Myriad Genetics Inc. (MYGN) can’t block competitors’ DNA tests to determine risk for breast and ovarian cancer after a U.S. appeals court said three patents on the tests never should have been issued.

"The patents cover products of nature and ideas that aren’t eligible for legal protection, the U.S. Court of Appeals for the Federal Circuit said in an opinion posted today on the court’s docket. The court upheld a trial judge’s decision to allow the competing tests, including those made by Ambry Genetics Corp., to remain on the market."

It sure looks like the US improves a lot on the patent front, but reading the lawyers-dominated press won't quite reinforce this impression.

"Comments will be accepted until March 16, 2015," says the USPTO regarding the "Interim Guidance on Subject Matter Eligibility". Three weeks from now we shall receive some new sregarding patent scope in the US and perhaps also find out who is going to head the USPTO,

A public forum will be hosted at the Alexandria campus of the USPTO on Jan. 21, 2015, to receive public feedback from any interested member of the public. The Eligibility Forum will be an opportunity for the Office to provide an overview of the Interim Eligibility Guidance and for participants to present their interpretation of the impact of Supreme Court precedent on the complex legal and technical issues involved in subject matter eligibility analysis during examination by providing oral feedback on the Interim Eligibility Guidance and claim example sets. Individuals will be provided an opportunity to make a presentation, to the extent that time permits.


It is very likely that law firms and large corporations will submit the lion's share of comments and those who are unaffiliated will be ignored or mostly unaccounted for. Software patents will lose when the wealthy interests against them outweigh the likes of Microsoft. In a world where Free software increasingly dominates (sharing and collaboration among software companies) the vision of a software patents-free world is no fantasy. ⬆

Recent Techrights' Posts

Fridges Do Not Need an Internet Connection
Keep it simple, stupid (KISS)
 
UK's Competition and Markets Authority (CMA) Says Microsoft is Still Abusive
Today, ahead of the latest fake 'results' [...] Microsoft cheats the system everywhere it can
Links 16/10/2026: "Data Centers Are Driving Conservative Rural Voters to The Democratic Party En Masse" and Slop Bros Bribe Candidates "for Congress"
Links for the day
Deplatforming People You Disagree With Is a Losing Strategy
Trying to deplatform people you don't agree with is oppressive and petty
Microsoft Cannot Pay Salaries
Microsoft is deep in debt
IBM "support that is USA based will migrate over 4 years to Indian based just because it lowers costs substantially."
IBM is not capable of growing, so it tries to find ways to shave off costs
Gemini Links 16/10/2026: Publishing and Licensing, Going to Movies, and Nature/Seasons Change
Links for the day
Microsoft's OSI Calling Slop "Open Source AI" (Microsoft Paid OSI to Do This) Has Helped Associate "Open Source" With Pedophilia
Microsoft deflecting?
Wikileaks Still Matters
The world needs more sites like these
'Cocaine King' Campinos Should 'Get the Message', Pack Up His Things and Go Already
His staff is constantly on strike and engaged in various industrial actions
We Don't Do Slop
People tend to appreciate genuine work, not fakes
On Lying With Confidence
LLMs are hype
Market Share of Windows in the United Kingdom is Shockingly Low
Microsoft's losses are very profound
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, October 15, 2026
IRC logs for Thursday, October 15, 2026
Microsoft Can Barely Afford to Colonise Africa Any Longer (Too Much Debt)
"Before the announcement, former Microsoft employees publicly described staff being placed on performance improvement plans or offered “voluntary” exits."
Intercontinental Brigading - Part IV - Harassment Registered With the Police Before Projection Attempts Made From America
The thing one gets subjected to for opposing back doors in Linux
Gemini Links 16/10/2026: Dogs, Slop, and Blogging
Links for the day
The Fate of "Alicante Mafia" at the EPO Yet to Be Determined
It'll be interesting to hear what they say about the secret meeting regarding the future of Campinos
Gemini Links 15/10/2026: Medical Difficulty, Science Fiction, and Playstation 3 Dies
Links for the day
Links 15/10/2026: Cuts to Public Health and Misuse of License Plate Data for Social Control
Links for the day
Links 15/10/2026: ALPRs Are Mass Surveillance, GAFAM Front Group ('New' EFF) Asks the Wisconsin Supreme Court to End Warrantless ALPR Searches
Links for the day
IBM RAs: "It's on Me"
IBM has no respect for the workers and it tries to hide the layoffs
Gemini Links 15/10/2026: Literature, Funerals, and Devices
Links for the day
The Efforts to Criminalise Opposition to a Ponzi Scheme Sold as "Super Intelligence" (Plagiarism Engines, Disinformation Generators)
Cops are becoming combatants for slop bros, i.e. they use power to promote a Ponzi scheme
Clownflare Sees Most Requests in Africa Coming From Android (Linux)
Android is the dominant platform
IBM's "RA Season" is Nearly Upon Us, But Tens of Thousands Are Already Marked for Removal With PIPs (as "Low Performers")
IBM is a dying company
Microsoft Has Confirmed It Had a Plan to Cut Azure (or Azure Costs) by 20%
So basically... yes! Microsoft did have a plan to slash Azure.
No Noticeable Libera Chat Exodus After Code of Censorship (CoC) Scandal Earlier This Month
Libera Chat pissed off some people by unmasking the CoC's real purpose
Red Hat Silent Layoffs Seem to Carry on Throughout This Month
How much longer will these silent layoffs (e.g. PIPs) carry on for?
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, October 14, 2026
IRC logs for Wednesday, October 14, 2026
Netflix and Its Newest Rival Carry 100 Billion Dollars in Debt
What sort of economy is this?
Egypt: GNU/Linux Still Measured at About 5%
Egypt is a prominent African nation and economy
Gemini Links 14/10/2026: Time Allocation, English as a Fourth Language, and "Reading News Sources" in Geminispace
Links for the day
DRM Giant Announces Giant Layoffs (Netflix’s Debt is Huge)
It's not like operational costs are decreasing, they're climbing fast.
Intercontinental Brigading - Part III - Reporting Harassment From America to British Police
Why are they so hostile towards (and afraid of) cops?
The Local Staff Committee Munich (LSCMN) Speaks of Deterioration of Working Conditions at the European Patent Office (EPO)
"At least 3 days per week in the Office for an allocated office"
Gemini Links 14/10/2026: GemPub, Randogoth Forge F-Droid Repo, Oddμ, and Kolibri
Links for the day
Bluewashing as Silent RAs: A "journey that began at Neudesic [...] and continued as part of IBM" inevitably came "to a close"
IBM can be antagonistic and reckless with whatever it buys
Links 14/10/2026: Houthi Attacks on KSA and Airstrikes Near Sudan-Egypt Border
Links for the day
No Coronation for 'Cocaine King' Campinos (Not Yet Anyway)
A flash update suggests perils exist and we must all wait until December as the position for EPO President may open
In Reddit, Moderators of IBM Subs Are Allegedly on IBM's Payroll (IBM Can Censor Discussions About IBM)
There also seem to be PIP layoffs in India
If Worthless Companies Are Valued at a Billion Dollars in the Slop Industry, Then What Is the True Worth of 'Trillion-Dollar' Companies?
Definitely not a bubble!
It Sounds Like Microsoft Plans to Lay Off Over 2,000 Azure (Microsoft) Workers as the Datacentre Business Brings Nothing But Epic Debt
Trillions in losses is not a solid business plan
IBM's Anderon is Like Theranos, But Will Anybody at IBM or Anderon Be Imprisoned for This Billion-Dollar Scam?
Will anyone ever be held accountable for it?
Microsoft XBox Won't Survive, Microsoft's CEO for This Perishing Business Turns to Slop
What the founder or father of XBox said about Asha Sharma earlier this year turns out to be accurate
Links 14/10/2026: So-called 'AI' Giants Go Bankrupt, "Military Will Hack the Election"
Links for the day
Indoor Season
we have more planned in order to improve navigation, accessibility, and workflows
Microsoft Demands That Staff Keeps Silent About the Mass Layoffs
Way to cause anger and ensure whistleblowers will go to the media
Microsoft Has Had Mass Layoffs in Azure Every Year Since 2020 and the Bleeding Continues Because It Misreports Earnings There
This is a bad week for Microsoft
Microsoft's International Mass Layoffs (Asia, Europe, Africa), Now Vietnam
A crisis that Microsoft is unable to hide
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Tuesday, October 13, 2026
IRC logs for Tuesday, October 13, 2026
Gemini Links 14/10/2026: Ceiling Fan, Fascism, Democracy, and Slop Being a Huge Bubble
Links for the day