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

01.30.16

The Greedy USPTO Leaves Loopholes, “Per Se”, for Patenting of Software in the United States Despite the Alice Case

Posted in America, Europe, Patents at 9:10 am by Dr. Roy Schestowitz

No loopholes “as such”, just loopholes “per se”

USPTO subject matter

Summary: The US patent office, USPTO, is still trying to sidestep rulings from the law setters in the United States, probably because of greed and no quality control motivations

THE United States’ Supreme Court was pretty clear about abstract patents and the USPTO very begrudgingly took this into account, only after courts have time after time thrown in the wastebasket patents granted by the USPTO, where quality control is worse than black comedy (is any examination being done at all or just stamping for a fee?).

“Unsurprisingly, in this extremely unregulated system, the patent office does the very minimum to realign as per court rulings and it leaves many loopholes for patenting of abstract software ideas.”Based on this page about “Patent Subject Matter Eligibility”, the USPTO does not want to actually obey the law as interpreted by the Supreme Court. Unsurprisingly, in this extremely unregulated system, the patent office does the very minimum to realign as per court rulings and it leaves many loopholes for patenting of abstract software ideas. The term “per se” is mentioned at least 5 times in this page and Benjamin Henrion (FFII) rightly said that the “USPTO is abusing the “per se”, as the EPO has abused “as such” to render software patentable at the end” (these words are like vague exceptions to each rule).

“Patents,” wrote a patents-centric person, “New entrant in § 101 (subject matter eligibility) tome. When do they update MPEP?”

Henrion, who will speak about similar issues pertaining to software patents in Europe tomorrow in Brussels, responded to the above by saying “that’s written by legalese guys that want to exploit loopholes.”

“USPTO is abusing the “per se”, as the EPO has abused “as such” to render software patentable at the end”
      –Benjamin Henrion
Another person who opposes software patents wrote: “Interpreting the Law to serve themselves? In order to obtain fees?”

Henrion later called it “EPO style power money grab” (recall how the EPO does this).

They are rendering software patents “acceptable” (or implicitly allowed) so as to grab more power and money at at the expense of citizens. This is just wrong. It shouldn’t be done. These organisations have .org and .gov domains, but they operate like greedy corporations and serve the greediest corporations, not citizens.

Writing about the Court of Appeals for the Federal Circuit (CAFC), this pro-software patents site (of patent lawyers) wrote yesterday that CAFC “Did Not Abuse Its Discretion To Allow Defendant’s § 101 Defense After Alice; Claims for “Anonymous Load Shopping” Using Generic Computer Technology Are Abstract And Unpatentable.”

It also said that “the plaintiff moved to strike the re-asserted invalidity defense under §101 as not made with good cause and as unfairly prejudicial. The defendant argued that the change was made in view of the Supreme Court’s §101 decision in Alice v. CLS Bank, which was decided two months before the final invalidity contentions were served. The district court agreed that the Alice decision was sufficient cause to re-assert the §101 defense in the final invalidity contentions. The district court later granted summary judgment of invalidity under §101. The plaintiff appealed.”

As can be seen here, the USPTO grants patents on software, but as per Supreme Court rulings, these patents are ruled invalid. This means that the USPTO no longer does what’s lawful and the wordings above (“per se”) help show that it’s not even interested in obeying the law. It just wants to exponentially grow the number of granted patents (the number doubled in a matter of a few years!).

This extreme greed means that a patent bubble is being created (leading to incorrect valuations of some companies) and it will inevitably explode/burst, causing a lot of damage to the US economy. It wouldn’t be so bad for patent lawyers when it finally happened.

Australian patent lawyers, in the meantime, try to figure out how to patent software in the US and in Australia. Lawyers’ media has just published “Business Method and Software Patent Eligibility: Australian and U.S. Standards” and it says:

RPL held that “[i]t is not a patentable invention simply to ‘put’ a business method ‘into’ a computer to implement the business method using the computer for its well-known and understood functions.” Stated another way, the computer cannot be “a mere tool in which the invention is performed,” but rather “must involve the creation of an artificial state of affairs where the computer is integral to the invention . . . .” The inventive aspect (“ingenuity” as termed by the Australian court) must be “in the way in which the computer is utilised,” not in the scheme, plan, or process that is being implemented.

At first blush, this sounds similar to the guide posts present in the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l. The Supreme Court held that “a mere instruction to ‘implement’ an abstract idea ‘on a computer’ . . . cannot impart patent eligibility.” Instead, citing prior cases, Alice held that the invention may be patent eligible where it “improve[s] the functioning of the computer itself,” or “effect[s] an improvement in any other technology or technical field.”

More and more places around the world, including Europe, rule/deem software patents invalid, at least when they reach the courts. It’s time for the public to pressure patent offices and patent lawyers whom they interact with (all for the accumulation of money), demanding that they stop ignoring the law. They shouldn’t be pursuing software patents. They are a big part of plenty of today’s problems. If patents are being compared to “products” and maximisation of “sales” (to clients/customers, not applicants) is the goal, no wonder we ended up in an increasingly horrible, sordid mess.

“[The EPO] can’t distinguish between hardware and software so the patents get issued anyway.”

Marshall Phelps, Microsoft

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

What Else is New


  1. Software Freedom and The U.S. Constitution

    “We need to stand for the freedom to not use the software — we need to enjoy that freedom without giving up the rest of the existing Free software ecosystem.”



  2. IRC Proceedings: Saturday, December 14, 2019

    IRC logs for Saturday, December 14, 2019



  3. Links 15/12/2019: Wine 5.0 RC1 Released, KDE Frameworks 5.65.0, Qubes OS 4.0.2 RC3

    Links for the day



  4. It Matters a Lot What You Call the System

    Why the best name for the best operating system would be "GNU", not "Linux" (media has twisted the words so as to marginalise GNU and its politics/philosophy)



  5. Only the EPO Goes as Far as Bribing Publishers (the Media) to Promote Software Patents and Publish Fictional Stories

    The world’s patent offices are growing tired of granting software patents which courts later toss out (because these patents are not valid); not only does the EPO advocate such patents — typically using a bundle of buzzwords — it’s also bribing the media to help



  6. EU Needs to Show That It Cares About SMEs and Not 'European Champions' That Are Actually Foreign Monopolies

    Judging by the EU’s nearly blind and unconditional support for the management of the EPO — no matter how abusive and corrupt it has gotten — one has to wonder if the ex-EU official in charge of the EPO reveals a profound democracy deficit as well as growing dangers to Europe’s businesses — the productive firms to which patent maximalism often represents far more risk than opportunity



  7. Guest Article: The Free Software Movement Should Come Out From the Box

    "From now onwards we have to think from a user’s rights perspective and mobilise users of Free software. They should know what rights they ought to get."



  8. IRC Proceedings: Friday, December 13, 2019

    IRC logs for Friday, December 13, 2019



  9. Links 13/12/2019: QEMU 4.2.0, GNU Guile 2.9.7

    Links for the day



  10. Links 13/12/2019: Zorin OS 15.1, Vim 8.2

    Links for the day



  11. Linux Foundation Has Outsourced All the Licence Compliance Stuff to Microsoft, a Serial GPL Violator

    OpenChain Specification/OpenChain Project and Automated Compliance Tooling (ACT) are yet more examples -- the latest of many -- of the Linux Foundation being outsourced to Microsoft, not only for code but also documentation and hosting



  12. IRC Proceedings: Thursday, December 12, 2019

    IRC logs for Thursday, December 12, 2019



  13. Copyleft: Keeping Code Free

    Now that news about "Linux" is dominated by promotion of proprietary software we ought to remember what perpetrators of such a strategy seek to eliminate



  14. Plans That Worked, Plans That Failed

    "I am still looking for good news, but the more good I try to find, the more nastiness I uncover. This is by far, Free software's worst year ever. 2019 Sucks!"



  15. Links 12/12/2019: KDE Applications 19.12, Qt Creator 4.11, New VirtualBox

    Links for the day



  16. Brand Dilution in Action

    Microsoft's proprietary software which spies on people and businesses is getting a "free ride" on the "Linux" brand; and nobody seems to care, nobody seems to notice how perverse that it



  17. At the EPO Money -- Not Quality -- is King

    Financiers are ruining quality



  18. The EPO's Strategic Failure 2023

    Potemkin social dialogue



  19. IRC Proceedings: Wednesday, December 11, 2019

    IRC logs for Wednesday, December 11, 2019



  20. EPO Promoting Software Patents in Countries Where These Are Illegal

    The EPO's vision of 'unitary' software patents (patents on algorithms in countries that disallow such patents, as per their national laws) won't materialise, but in the meantime a lot of Invalid Patents (IPs) are granted in the form of European Patents (EPs) and this is wrong



  21. We Support GNU and the FSF But Remain Sceptical and Occasionally Worry About an RMS-less FSF

    Richard Stallman (RMS) is not in charge of the FSF anymore (it's Stallman who created the FSF) and there's risk the decisions will be made by people who don't share Stallman's ethics or the FSF's spirit



  22. Links 11/12/2019: Huawei Lobbied by Microsoft (Because of GNU/Linux) and Microsoft Still Googlebombs Linux to Promote 'Teams'

    Links for the day



  23. Links 11/12/2019: Edge Native Working Group, CrossOver 19.0 Released

    Links for the day



  24. Instead of Fixing Bug #1 Canonical/Ubuntu Contributes to Making the Bug Even More Severe (WSL/EEE)

    Following one seminal report about Canonical financially contributing to Microsoft's EEE efforts — celebrated openly by GNU/Linux opponentsclosing bug #1 Ubuntu basically decided not that it was fixed but that it would no longer attempt to fix it (“wontfix”)



  25. IRC Proceedings: Tuesday, December 10, 2019

    IRC logs for Tuesday, December 10, 2019



  26. Today's Example of Microsoft's Faked 'Love'

    “On 7 September 2017, users began noticing a message that stated “Skype for Business is now Microsoft Teams”. This was confirmed on 25 September 2017, at Microsoft’s annual Ignite conference,” according to Wikipedia



  27. Links 10/12/2019: Kubernetes 1.17, Debian Init Systems GR

    Links for the day



  28. 'Cancel Culture' as 'Thoughtpolice' Creep

    Richard Stallman spoke about an important aspect of censorship more than 2 decades ago (before “Open Source” even existed); it was published in Datamation (“Censoring My Software”) 23 years before a campaign of defamation on the Internet was used to remove him from MIT and FSF (censoring or ‘canceling’ Stallman himself)



  29. Microsoft Still Hates GNU/Linux and Mark Shuttleworth Knows It (But He is Desperate for Money)

    We're supposed to believe that a PR or image management (reputation laundering) campaign alone can turn Microsoft from GNU/Linux foe into friend/ally



  30. Actions Against EPO Corruption and Unitary Patent (UPC) Injustice/Lobbying

    The EPO is apparently going on strike again and an action against the UPC is scheduled for later this week (protest in Brussels)


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