Bonum Certa Men Certa

Software Patents Are a Dying Breed in the United States and the EPO Should Take Notice

Software patents are rotting away internationally, but will the EPO adapt accordingly?

Fading away



Summary: A roundup of recent news about software patents in the United States and what this means to Europe, where the patent office is now in a state of transition and must quickly restore quality rather than quantity

TECHRIGHTS spent nearly a decade writing about software patents and my activism against software patents predates this Web site. It's only now, or any time after the 2014 decision on Alice, that considerable headway can be celebrated. The Bilski case (at SCOTUS) just wasn't enough.



Patently-O has this up-to-date list of "Pending Supreme Court Patent Cases 2016" and its author recalls SCOTUS Justice Scalia. "Following Justice Scalia’s death," he notes, "the Supreme Court simplified its docket by denying certiorari to a set of patent cases, including: Arthrex v. Smith and Nephew; STC v. Global Traffic Technologies; ePlus v. Lawson Software, Inc.; Media Rights Technologies v. Capitol One; Alexsam v. The Gap; ULT v. Lighting Ballast Control; and Achates v. Apple."

"All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality."Patent Docs, another patents-centric site, says that the "USPTO Issues Performance and Accountability Report for FY 2015", not quite noting that the USPTO only cares about money, not quality (very much the Battistelli delusion/lunacy).

Patent lawyers, based on this new article from lawyers' media, still try to figure out how to continue fighting the courts over software patents after Alice. It's not easy for them to accept deflation in the number of patents. They think of it like a business, which is antithetical to the patent system (as it was originally conceived a long time ago). Does the US still have an open-handed approach when it comes to software patents, or is it becoming just a stretch of imagination prevalent among patent maximalists who give bad advice to potential or existing clients? As one patent attorney put it the other day, "ITC ruled that two Jawbone patents asserted against Fitbit are Ineligible under Alice/ 101: http://assets.law360news.com/0767000/767622/1078594-575628.pdf"

So even the overzealous and biased ITC, not just the typical courts, is not antagonising software patents? This may be unprecedented.

Patent maximalists over at IAM said this morning that "Chinese companies see US pendulum swinging back, while validity becomes more of an issue at home". It's about PTAB, which is increasingly being used to invalidate software patents even without them being used litigiously. To quote IAM: "Chinese companies may be using PTAB as a handy tool for now, but one defensive risk analyst I spoke to in Shenzhen expressed the views that the prevalence of invalidity challenges in the US is more a temporary opportunity than a ‘new normal’."

Earlier this year we wrote about how a Chinese company had its products seized at a trade show, only to see the case against it dropped altogether. What is this? It sure made the US patent system blush a bit, as though its victims (not the so-called 'pirates' or 'thieves') are Chinese. This is not justice. It's just a bunch of goons storming a trade show because of patents and confiscating actual products.

All in all, software patents everywhere have no room in the docket, as courts (even in Europe) deem them invalid and it is time to recognise this new reality. There should be no software patents in Europe, for instance, regardless of the spin/wording, e.g. if they're "as such" or not (whatever that even means!). It puts the EPO's reputation at risk. In any patent system, rejection/acceptance rate does not in itself say anything, especially if it wrongly accepts and rejects applications (overworking the examiners means poorer identification of prior art, hence uncertainty, usually resulting in an erroneous grant). Based on sources of ours who are applicants at the EPO (several such people who already have patents in national patent offices), the EPO rejects legitimate patent applications whilst overpatenting e.g. granting patents on software. What message does that send out? What does this mean to the so-called 'results' that Battistelli brags about in him awkwardly scripted speech)? And if courts keep finding "EP" patents invalid, wouldn't that devalue "EP" patents and lead to degradation of confidence? A lot of inventors in Europe are rightly upset at the EPO right now. Their already-granted patents lose value (or perceived value).

The EPO is not a cash cow for Europe if the money comes from Europeans. Ask European patent applicants (not massive corporations from abroad) who spent as much as the value of a whole house how they feel after failing to get even one patent because of EPO misconduct whilst others (massive corporations) receive a fast lane and get "EP" patents in bulk. It's a sordid mess and a sham.

If Christoph Ernst becomes the EPO's President some time this spring (or maybe later this month), then he can use his background in economics/law to amend policy so as to better comply with the EPC (i.e. no software patents). Moreover, for Ernst (or another potential president) the first step to take should be to restore/recognise the status of SUEPO and bring back dismissed representatives. They too expressed concerns about patent scope, even many years ago. SUEPO was right all along.

Recent Techrights' Posts

Linux Foundation is a Mediator for Microsoft et al, Not for Small Companies That Support Rather Than Attack the GPL
Many people still wrongly assume that because it is called "Linux Foundation", then it is pro-Linux and represents the same mindset
This Past Friday, Confirming What We Said All Along About Brett Wilson LLP: It's Shrinking, Has Considerable Debt, Loss of Net Assets Despite the Microsoft SLAPP Money
The documents only became publicly available less than 2 days ago
There Was Always Too Much 'Crazy Stuff' Going on Around Freenode
What many IRC users lost sight of
Exposing Crime is Not a Crime (It Never Was)
In the eyes of rich and powerful people, those who speak about their crimes are the "criminals"
 
Links 08/06/2025: Tiananmen Carnage Censorship Persists, North Korean Goes Offline
Links for the day
Gemini Links 08/06/2025: Love as an Ethnographic Method and Monitorix Gemini-Frontend v0.1
Links for the day
Links 08/06/2025: Exposure of More GAFAM Surveillance and Social Security Records Compromised
Links for the day
Some of the Many Reasons We Sued Microsofters for Harassment
perpetrators of harassment
For 20 Years Many People Were Sharecropping for Canonical's Oligarch, Now He's Deleting All Their Contributions
"Ubuntu has erased instead of archiving the trove of material at Ubuntu Forums"
GNU/Linux Distros Abandoning Microsoft GitHub
Will curl be next to leave Microsoft GitHub?
Expect More XBox Mass Layoffs Soon If the Rumours Are True
From a Microsoft media operative
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Saturday, June 07, 2025
IRC logs for Saturday, June 07, 2025
Europe Needs to Move Away From GAFAM; The Sooner, the Better
Europe - not just the EU - must abandon GAFAM as soon as possible
The Issue Isn't GNOME's Promotion of Diversity But GNOME Corruption, Abuse, Censorship, and Worse
So-called "Conservative" (republican, pro-Trump, bigoted) people want you to think the problem with GNOME is politics
When the News Sources Become Scarce and Increasingly Full of Polluted/Contaminated 'Content' (With LLM Slop and Slop Images)
Integrity matters
"Linux" Sites That Spew Out LLM Slop
We're lacking enough material for another "Slopwatch"
Abuse Inside the Polish Patent Office (UPRP) - Part V: Breaking the Law, Just Like EPO
We'll hopefully cover some of the pertinent details later this year
Links 08/06/2025: Security Lapses, CISA Cuts, and More
Links for the day
Gemini Links 07/06/2025: Mime Types and Geminisphere Introduction
Links for the day
Links 07/06/2025: Slop Companies Retain All Private Data, More Books Banned in the US
Links for the day
Gemini Links 07/06/2025: "A Monk's Guide to Happiness" and "Wireless Earbuds"
Links for the day
Links 07/06/2025: More Rumours of Mass Layoffs in Microsoft's XBox Division, New COVID Variant
Links for the day
Drug Addiction is a Real Problem, It Destroys Families
a rather sensitive matter
Abuse Inside the Polish Patent Office (UPRP) - Part IV: Political Scrutiny and Errors/Inconsistencies in Official Documents
When such organisations receive scrutiny they start focusing on cover-up and muzzling of facts (or crushing people who say the truth)
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, June 06, 2025
IRC logs for Friday, June 06, 2025
Slopwatch: LinuxTechLab, Planet Ubuntu, Anti-Linux FUD, and Microsoft SPAM
It's not easy to altogether avoid take articles these days
Gemini Links 06/06/2025: "MBA Tear" and Slop ('AI') as Plagiarism
Links for the day
Links 06/06/2025: "Convicted Felon and MElon Trade Insults" and Europe Snubbed by US Again
Links for the day
Links 06/06/2025: Microsoft XBox Bracing For More Mass Layoffs, Climate Disaster, Fake 'Money' Tokens From US President
Links for the day
Gemini Links 06/06/2025: Vanishing Cultures and MElon Implosion
Links for the day
Extortion is a Crime, Even If You're Based in Another Continent and Work for Microsoft
reported to British authorities
We're in 6/6 Now, Almost Halfway in 2025
2025 was probably the best year for us
South Americans Are Saying Goodbye to Microsoft
We're hardly even "Cherry-Picking" or conveniently singling out one South American nation
Abuse Inside the Polish Patent Office (UPRP) - Part III: Data Protection Failures, Just Like at the European Patent Office (EPO)
Just less than a decade ago we showed that the EPO had illegally shared staff data with third parties
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, June 05, 2025
IRC logs for Thursday, June 05, 2025