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. Links 26/5/2020: SHIFT13mi GNU/Linux Tablet, Linux Kodachi 7.0 and Some Qt Releases

    Links for the day



  2. EPO Propaganda on Steroids (or on EPO)

    What EPO management is saying and what is actually happening



  3. Breton (EU) 'Joins' Team UPC to Help His Buddy Battistelli... Again

    As expected, Breton acts as little but an EPO tool, looking to prop up supremacy of patent litigation over science and innovation



  4. Removing Free/Libre Software as an Inadequate Response to Microsoft Windows (With Back Doors) Getting Compromised, Killing People

    GNU/Linux takes the blame (in a sense) for incidents that are purely the fault of Microsoft and its deficient software with deliberate back doors; it's believed that this boils down to opportunistic retaliation against those looking for a solution to the problem (or merely speaking about the problem)



  5. IRC Proceedings: Monday, May 25, 2020

    IRC logs for Monday, May 25, 2020



  6. Under Distributed Denial of Service Attacks Lately, But We're Too Robust For Those

    Efforts to take Techrights offline have been ramped up lately; but it's not working and it hardly even distracts us from publishing



  7. The Art of Giving: Why Free Software Will Inevitably Survive Attacks Against It

    Societies that share and look after their peers/neighbours will always be better off than predatory societies, which breed exploitation, distrust, discord and eventually systemic collapse



  8. 'Journalism' in 2020: Far More Articles About What Computer Linus Torvalds Bought Than About Linux Releases

    Yesterday's (or late Sunday's) Linux announcement (RC7) is symptomatic of a broader issue we've long spoken about; it restricts people's ability to express an opinion, which can cloud any meritorious and substantial debate about technical matters journalists cannot grasp or comment on (it takes more effort and research)



  9. Links 25/5/2020: Wrapland Redone, DebConf20 Plans, Many More Games

    Links for the day



  10. Media Covers WSL Like People Actually Use This Trash (a Failed Distro Which Only Works With Windows)

    Lots of abundantly redundant puff pieces have appeared in paid-for (by Microsoft) media this past week covering WSL/2, but that's grossly disproportional to the people who care and actually use those types of things (because money talks, not technical substance)



  11. Working From Home on Patent Monopolies Would Lower Their Quality and Perceived Legitimacy

    The patent system wherein people grant monopolies from their sofas and bedrooms isn't helping the already-eroded perception/image of patent offices that mostly grant patents to massive multinationals (and far too many patents overall)



  12. The Attitude of António Campinos Toward Courts and Toward Justice Same as Benoît Battistelli's

    6 years down the road we're still dealing with unaccountable tyrants who laugh at the law, laugh at lawmakers and disregard law enforcers (like the Trump regime across the Atlantic)



  13. IRC Proceedings: Sunday, May 24, 2020

    IRC logs for Sunday, May 24, 2020



  14. Asking Microsoft If It Loves Linux is Like Asking Google If It's Evil

    The media keeps bombarding us with lousy, weakly-sourced messages about Microsoft regretting its stance on “Open Source” and loving “Linux” (both are lies that are very easily debunked), so journalism has an existential problem and maybe too much dependence on ad money (a form of bribery) from “Big Tech” that does “clown computing” and “apps”



  15. Features Considered Harmful

    "But the benefits of Free software, free candy and new features are all meaningless, if the user isn't in control."



  16. Free, as in “App”

    "As everyday users, we need to be able to configure our applications, and this process must/needs to be made as easy and understandable as possible."



  17. Links 25/5/2020: Linux 5.7 RC7 and TeleIRC 2.0.0

    Links for the day



  18. Links 24/5/2020: TUXEDO Computers on AMD, Ardour 6.0 is Out

    Links for the day



  19. Trust Microsoft With Everything Including Your Life

    A timely if not apt meme about the state of Windows-powered hospitals, which very often end up foreign-operated (taken over by crackers in another country)



  20. When the Response to Hospitals Being Systematically Cracked Through Microsoft Products Like Windows is... Blocking the Competition of Microsoft

    People keep dying because Microsoft Windows, poorly designed with NSA back doors in it, falls into the hands of malicious actors (sometimes overseas, sometimes using leaked tools of the NSA itself) and guess who takes the blame when hospitals grind to a halt due to this…



  21. IRC Proceedings: Saturday, May 23, 2020

    IRC logs for Saturday, May 23, 2020



  22. Ode to the 'Orange One'

    Bush Senior and Junior, Hillary/Bill Clinton and now António Battistelli (or Benoît Campinos); are we dealing with monarchies/monarchs and pledges of allegiance or with public institutions beholden to the public, to be governed by the law?



  23. Home Working at the EPO: Your Corporate, Global Monopolies Will Be Rubber-stamped From Private Homes

    We’re expected to believe that EPO employees working under the noses of Microsoft (in another continent!) with kids running around will be able to be both productive and professional; staff already complains about working until midnight and beyond, without any conceivable separation between career and personal life



  24. To Understand Why “Inner Source” is a Cheap Corporate Ploy if Not a Free Software-Hostile 'Scam' Look Who's Behind It

    It's rather easy to see that the O'Reilly-connected and Bill Gates-connected leadership of InnerSource Commons (ISC) doesn't register this fake 'charity' to promote Software Freedom but to fight against it under the guise of "open" (openwashing)



  25. Microsoft: We Were Wrong About Open Source and That's Why We 'Liberate' Code... From 1983 (and We Won't Accept Code Changes, Either!)

    The tiresome openwashing efforts from Microsoft verge on the farcical, but the Microsoft-funded media plays along with it all regardless



  26. The Unitary Patent and Unified Patent Court Book

    The Unified Patent Court (UPC) propaganda must be confronted; there's a book in the making about UPC lies and the anatomy of this legislative coup attempt by litigation fanatics (who profit from monopolies, patent trolls and so on)



  27. Links 23/5/2020: Oracle Solaris 11.4 SRU21, Wine-Staging 5.9

    Links for the day



  28. Spillover: Team UPC Trying to Fill Up the Cup 'Half Empty'

    The European Patent Office's (EPO) corruption is mirrored in UPC corruption; the former hasn't yet seen its downfall due to this corruption and the latter is already up in flames, no matter how media sites (are paid to) spin it, giving false hope for the sake of lobbying by Team UPC



  29. The EPO Continues to Publicly Brag About Granting Illegal Patents to Fake 'Production' (It's Not Really Production But Abuse of the Granting Authority)

    Patents on life, nature and mathematics serve to highlight the degree of corruption embraced by EPO management, eager to fake ‘production’ in order to hoard money, which is then stolen and misused in other ways



  30. GNOME Settlement With Patent Troll Fails to Address/Tackle the Software Patent and Software Patents in General

    GNOME settles with the troll on terms that are superficially friendly towards Free software; however, more could be done to actually defuse matters on legal if not precedential grounds


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