Bonum Certa Men Certa

The USPTO and Legal System Are Tightening Patent Scope, Which Means Virtually No Software Patents Anymore

...Not even if the algorithms are run on some “general purpose computer” (whatever that means!)

Time is tight



Summary: Software patents and lawyers who depend on them are running out of time and running low on spin/cherry-picking/excuses

YESTERDAY we wrote about video streaming patents and a notorious podcasting patent getting invalidated, with admission from the USPTO that it granted in error (prior art, not just Alice). Some software patenting proponents caught up with it and posted a link to the full decision: "Dist. Of DE Kills 2 Video Streaming Patents with Alice/ 101: http://assets.law360news.com/0824000/824998/04313306922.pdf …"



The word "kills" is intended to give this a negative connotation, just like "attacks" and "death squad" (same person uses these words a lot).

This wasn't a CAFC decision and that's actually noteworthy because nowadays the Court of Appeals for the Federal Circuit (CAFC) is a lot more likely to invalidate/reject software patents based on Alice. Speaking of CAFC, a new article by Dennis Crouch speaks of scope limitation induced by “consisting of” inside patents. To quote:

Although our attention over the past few years has focused more on eligibility and definiteness issues, claim construction continues to befuddle the courts. In MultiLayer Stretch Cling Film v. Berry Plastics (Fed. Cir. 2016), the Federal Circuit has offered a split interpretation of the patent’s Markush group claim element.

The asserted cling-film claim requires “five identifiable inner layers with each layer being selected from the group consisting of LLDPE, VLDPE, ULDPE, and mLLDPE resins.”


So here we have another example of tightening patent scope, other than what's related to Alice.

Speaking of Alice and CAFC, Troutman Sanders LLP wrote in the software patenting proponents' site earlier today, noting that according to CAFC, "Software means plus function claims Indefinite for failure to disclose algorithm," or in other words software patents are not "function [if you] then disclose a “general purpose computer” as the structure performing that function."

This is noteworthy because efforts to pass/sneak in software patents in India, Europe and New Zealand have relied on attempts to ascribe physical properties to software by stating in the patent application that it runs on some machine (typically just some ordinary off-the-shelf PC or server). To quote the funnier part from the above: "The Court also affirmed that the this means-plus-function term was indefinite. In the case of computer-implemented functions, the specification must disclose an algorithm for performing the claimed function. The patents-in-suit did not disclose an operative algorithm for the claimed “symbol generator.” The function of generating symbols must be performed by some component of the patents, but the patents did not describe this component."

So the patent/s did not even describe an algorithm, let alone pseudo-code!

It definitely looks as though patent lawyers are growing nervous, seeing year after year how more and more abstract patents get thrown down the toilet/wastebasket, essentially devaluing the remainder (those not tested in the court or in PTAB, which we shall write about next).

Recent Techrights' Posts

Blizzard/Microsoft Unions Grow Ahead of Mass Layoffs at Microsoft, Apparently Starting Next Week (as Many as 30,000 Workers Laid Off by Year's End)
Microsoft already fired about 5,000-6,000 workers this year by our estimates; that's not counting resignations compelled through pressure (i.e. pushed, did not jump) and contractors
"Victory Day" - Part II: Abject Defeat to Hypocrites and Objectionable People Who Strangle Women Whilst on Microsoft's Payroll
Someone is going to have to pay for this; it won't be us
Rust Propaganda Now Amplified by Slopfarms Powered by Microsoft LLMs, Encouraging the Outsourcing of GNU/Linux Distros to Microsoft/GitHub/NSA (and a Shift Away From GPL/Copyleft)
Moving to Microsoft GitHub and adopting unfinished, untested code for highly critical bits
IBM is Rotting With "Zero Internal Jobs" and Many PIPs (Performance Improvement Plans) on the Way, Typically a Fast Track Towards Layoffs Without Severance
At risk of giving air(time) to tribal sentiments, the internal joke at IBM is that to IBM "AI" stands for "All Indian"
 
Links 10/05/2025: Germany Considers Smartphone Ban in Schools, Right to Repair Bills
Links for the day
Gemini Links 10/05/2025: Git Server and Great LLM DDoS of 2025
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Friday, May 09, 2025
IRC logs for Friday, May 09, 2025
Links 09/05/2025: Inflation Rising and Rights to Protest Curtailed Some More
Links for the day
Gemini Links 09/05/2025: Good and Evil, LLMs Made the Web Worse Yet Again
Links for the day
European Patent Office (EPO) Faked "Revenue Expansion" by Granting Loads of Invalid, Illegal Patents; Staff Still Wants to Know Where That Money Went
Only about 30% of the EPO's patents are for EU entities/people
The Gerstnerisation of Microsoft: Seventh Wave of Microsoft Layoffs (Over 20,000 to be Cut) Allegedly Going to Start Shortly, Probably Start of Next Week, Microsoft Spreads Chaff and Noise Before the Big Axes Fall
we might be looking at about 50,000 people that Microsoft gets rid of this year
Links 09/05/2025: TeleMessage Blunder, More Distractions From Impending Mass Layoffs at Microsoft
Links for the day
GNU (and the FSF) Still Changing the World
Today, in 2025, GNU powers almost everything
Military-Grade Anti-Linux Microsoft Propaganda Using Microsoft LLMs in Fake 'News' Sites (Slopfarms)
This is part of a pattern
Links 09/05/2025: Analog Computer and First time at FOSDEM
Links for the day
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Thursday, May 08, 2025
IRC logs for Thursday, May 08, 2025
Links 08/05/2025: Mass Layoffs at Google Again, India/Pakistan Tensions Continue to Grow, New Pope (US) Selected
Links for the day
"Victory Day" - Part I: That is the Day Microsofters Who Assault Women Pay for Their Actions in Foreign Land (Using "Guns for Hire" Who Attack Their Own Country for American Dollars)
Adding a friend from Microsoft to the docket didn't help
Rust is Starting to Seem More Like Microsoft-hosted "Digital Maoism", Not a Legitimate Effort to Improve Security
Maybe this is very innocent, but they seem to have taken a solid, stable program from a high-profile Frenchman and looked for ways to marry it with GitHub, i.e. Microsoft/NSA
Gemini Links 08/05/2025: Practical Gemini Use Case, Shutdown of the Blanket Fort Webring
Links for the day
Links 08/05/2025: "Slop Presidency", US Government Defunds Public Broadcasting
Links for the day
Lasse Fister, Organiser of Libre Graphics Meeting, Points Out the Code of Conduct is Likely Violated by the Same People Who Promote Codes of Conduct (and Then Bully Him Into Cancelling a Keynote)
I am starting to see Lasse Fister as another victim
LLM Slop Attacks Not Only Sites of Free Software Projects But Also Bug Reporting Systems (Time-wasting, in Effect "DDoS")
Microsoft, the leading purveyor and promoter of slop, is a cancer
The Richard Stallman (RMS) "European Tour" Carries on In Spite of the Nuremberg Incident
Some people spoke about how they saw yesterday's talk
Over at Tux Machines...
GNU/Linux news for the past day
IRC Proceedings: Wednesday, May 07, 2025
IRC logs for Wednesday, May 07, 2025